Scientific Safety Concerns And EU Action Put South African Gel Polish Salons On Liability Alert

Jonathan Kaiser, Head of Claims_Liability, Professional Indemnity and Construction at Santam. Image supplied

The ban was triggered by scientific evidence suggesting potential carcinogenic, mutagenic, and reproductive toxicity risks. Under the EU regulation, the sale, use and possession of TPO-based cosmetics is prohibited, with no grace period for salons or retailers to exhaust existing stock.

While South Africa has not introduced a similar measure, the EU’s stance has raised questions about how local businesses should respond to emerging scientific concerns long before a formal ban arrives.

According to Jonathan Kaiser, Head of Claims: Liability, Professional Indemnity and Construction at Santam, the gap between scientific developments and regulatory updates is where many businesses misjudge their exposure.

“Companies often rely on the defence that a substance or practice was not yet banned, but courts do not assess liability on regulatory legality alone,” explains Kaiser.

“Instead, they apply the standard of what a reasonable person would have done once aware of a credible risk. When information about potential harm becomes widely circulated, plausible deniability disappears.”

Kaiser highlights parallels from other industries. He points to red dye number three, which was banned for use in cosmetics decades before the United States moved to restrict it in food, and to ingredients like titanium dioxide, removed from European confectionery due to cancer concerns.

“Businesses in these sectors often argued they complied with regulations, but this did not exempt them from responsibility. The same reasoning applies to TPO. If credible evidence suggests a safety concern, businesses must examine alternatives, even if local laws remain unchanged.”

For salons still using TPO-based products, the exposure is twofold. “A client who later suffers a health condition may argue that the salon contributed to the harm, even if causation is difficult to prove definitively.

Courts can attribute liability if it is shown that the business continued using products with documented risks and the product was at least ‘a’ cause of the overall harm. Insurers may also begin to treat such cases more strictly,” says Kaiser, who notes that substances like asbestos, once considered safe, became universal exclusions once risks were established. “A similar shift could occur with ingredients flagged globally for toxicity,” he adds.

The financial implications of an uncovered liability claim are significant, especially for small and medium-sized enterprises (SMEs), says Kaiser, who emphasises that smaller businesses rarely have the cash reserves to meet litigation costs or settlements.

“Without liability insurance, a single claim could force a business into liquidation. Larger firms may absorb the costs but still face shareholder pressure and reputational damage. While liability policies do not directly insure reputational fallout, they support a business by establishing whether the client was at fault and resolving the matter quickly.”

Kaiser advises that the safest path for South African salons is to adopt TPO-free formulations now, request guidance from their brokers, and ask insurers for sector-specific risk assessments. “Proactive risk management, backed by comprehensive liability cover, remains essential as scientific understanding evolves faster than regulation,” he concludes.