In essence, the Act aims to increase consumer confidence in Sun Protection Factor (SPF) claims (labelling or advertising products using an SPF rating) by requiring sunscreens to comply with the joint Australian/New Zealand sunscreen standard (AS/NZS 2604:2012). In broad terms, an SPF rating indicates how effective a product is at providing protection from the sun, with products with a high SPF rating offering greater protection than those with a low SPF rating.
Regulation of sunscreens in New Zealand
In New Zealand, sunscreens are currently classified as cosmetics and do not require pre-approval/consent before marketing. However, businesses that make SPF claims must comply with the Fair Trading Act 1986 (FTA). The FTA prohibits a person from making false, misleading or unsubstantiated representations about goods or services in trade, including representations that goods are of a particular standard or have particular performance characteristics. Effectively, this means that businesses must be able to substantiate an SPF claim. This is generally done by showing that a particular product has its claimed SPF rating when tested in accordance with a globally recognised sunscreen standard. However, inconsistency between these standards can result in confusion for consumers and businesses around which standards provide an adequate basis for SPF claims.
Sunscreen (Product Safety Standard) Act 2022
The Act seeks to address this issue by mandating compliance with the AS/NZ standard so that a single standard for the testing and labelling of sunscreens is applied in New Zealand. It does this by deeming the AS/NZ standard a ‘product safety standard’ for sunscreen products for the purposes of section 29 of the FTA. Effectively, this means that businesses are prohibited (under section 30 of the FTA) from supplying, offering to supply, or advertising to supply a sunscreen product that does not comply with the AS/NZ standard. Failing to comply can result in fines of up to $600,000 (for companies) and up to $200,000 (for individuals).
The above requirements come into effect on 8 September 2022, allowing time for manufacturers and suppliers to comply with the new legislation. There is an exemption in respect of sunscreen products manufactured or imported into New Zealand prior to 8 March 2022, which applies for a duration of 12 months after the new requirements come into effect.
Although the Act increases regulation of the sunscreen industry in New Zealand, many advocacy groups are hoping it is only an interim measure before further regulation is introduced. For example, Cancer Society NZ and Consumer NZ are calling for sunscreens to be more highly regulated as a “therapeutic product” under the proposed Therapeutic Products and Medicines Bill (intended to replace the Medicines Act 1981). Accordingly, future developments in this area are quite possible.
If you would like further information about the new legislation, or how it may affect your business, please get in touch with our Business Advice Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.