A joint call by the EEB alongside a number of businesses, consumers and civil society organisations demands the Digital Service Act (DSA) to have unambiguous rules and tackle illegal rogue traders.
The toxic trade of often illegal skin-lightening products containing mercury is a global crisis. This is likely to only worsen with skyrocketing demand, as many people of colour are under the pressure of eurocentric beauty standards, based on the racist notion that lighter skin is more desirable. In the quest for lighter skin, many turn to skin lightening products and by choosing some of the least expensive products, unwittingly expose themselves to more toxic and often illegal substances.
The massive growth of online e-commerce platform services are creating an enormous challenge for governments attempting to keep dangerous, toxic and often illegal products out of consumers’ hands.
Mercury is well known to local, national and international agencies because it presents a serious risk to human health and the environment. It is on the World Health Organisation’s list of 10 chemicals, or groups of chemicals, of major public health concern, as it affects the nervous, digestive and immune systems.
Regular use of skin-bleaching or skin-lightening creams and soaps containing mercury can lead to rashes, skin discoloration and blotching. Long-term exposure can have serious health consequences, including damage to the skin, eyes, lungs, kidneys and the digestive, immune and nervous systems.
As a result, many national governments have banned or set restrictive mercury levels of 1 part per million (ppm) to curtail the illegal trade in cosmetics. Furthermore, starting on 1 January 2021, the Minamata Convention on Mercury requires each of the 135 ratifying parties to take appropriate measures to ban the production, import or export of cosmetics containing over 1 ppm mercury.
Mercury making it across borders
In the EU, the Cosmetics Regulation, prohibits mercury containing cosmetic products being placed on the EU market.
Furthermore, the European Union already has provisions for monitoring and prohibiting unsafe consumer products to protect citizens. Under the General Product Safety Directive 2001/95/EC (GPSD) the European Union established the Rapid Exchange of Information System (RAPEX), an EU alert system, that allows a quick exchange on measures to recall products and permit exchanges by voluntary action or manufactures and distributors.
Although such measures are in place in the EU and elsewhere, consistent with other research, recent Zero Mercury Working Group (ZMWG) studies indicate that a significant proportion of skin-lightening creams sold worldwide contains dangerous levels of mercury which find their way also in ‘regulated’ countries.
Extensive testing by the ZMWG in 2019, confirmed that local markets and internet platforms, such as Amazon and eBay (along with many other online internet marketers worldwide), are selling often illegal skin-lighteners that have already been identified by researchers, NGOs and many governments around the world as being over the legal limit.
In this latest study, the collection of samples was carried out by NGO partners of the ZMWG: 158 samples were bought from both physical shops and e-commerce platforms in the 12 countries that participated in the study. After testing, 95 of the samples were found to exceed the 1ppm mercury limit.
Among these, 23 products were purchased in the EU from Amazon UK and eBay Belgium, out of which 13 contained mercury.
While many of these products were identified in our prior 2018 ZMWG testing report, our most recent 2019 testing confirms that the same brands are still available and being sold in several countries, and/or are available to them from e-commerce platforms. This study also showed that the same brands were found to contain high mercury levels on several consecutive sampling occasions, in different years, in both physical shops and via e-commerce platforms.
It is clear that e-commerce giants have failed to ensure that cosmetics sold through their sites directly or by third-party sellers are free of hazardous substances like mercury.
Internet platforms can no longer be treated like newspapers, being exempted from liability of illegal/unsafe product sales. This is because they now profit from each product sale, they control the content of their websites and terms of sale, they often represent foreign sellers which have no physical or financial presence in country, and often distribute the product directly.
Policies regulating e-commerce giants further complicate sanctions for non-compliance because of an unclear division of liabilities.
Accountability and proper enforcement is crucial to make a difference
Online liability reform is necessary at the EU level and globally. The European authorities must hold online retailers accountable whilst local and national authorities must enforce the already implemented laws if they truly want to end the sales of mercury in cosmetics.
If the European Union would take this matter seriously, the legislative reform needs to happen in a swift, immediate fashion. The DSA should define sufficient conditions for online retailers’ liability and should not preclude the possibility for other EU laws to also establish positive liability.
Online platforms should not escape liability when:
- They are aware of an illegal activity on their interfaces and do not take immediate action;
- They exert a decisive influence on the trader or the transaction;
- There is no party based in the EU that can be held liable for an illegal activity online on their platform; or
- They do not comply with their own DSA due diligence obligations, such as the know your-business customer obligation.
Currently, the General Product Safety Directive (GPSD) is being reformed and the new Regulation should better address safety-specific issues encountered in marketplaces.
At the same time, enforcement measures need to be maintained and strengthened by government officials and customs officers to ensure efficient and effective follow-ups. Best practice follow-up techniques employed by national authorities should include: regular and systematic spot-checks on the market; cooperation with business associations; NGOs and consumer organisations; publication of RAPEX data via the Internet or other electronic and paper media; and regular checks by national authorities on the availability of products notified via RAPEX in e-commerce.
Interagency, local, national and international cooperation is also necessary.
Toxic trade of often illegal mercury-added skin-lightening products is a global crisis: many informal participants are involved, there is decentralised illegal activity and insufficient awareness of health risks. To that end, attention is needed on both the supply and demand sides: online platform liability reform and monitoring of high mercury creams available from internet platforms and in shops are necessary and enforcement needs to be strengthened.
Article written by Elena Lymberidi-Settimo, Michael Bender and Andreas Prevodnik published in the RILO Western Europe World Customs Organisation INFO MAGAZINE, June 2021.