Is the European Union 100% Cruelty-Free?

European Union Cruelty-Free

On 11 March 2013, the European Union finalised the implementation of an animal testing ban and a marketing ban in relation to animal tested products. Since then, there is a widespread belief that the European Union is officially 100% cruelty-free. Many consumers believe that they can trust that all products they purchase in the European Union are cruelty-free. Unfortunately, this is not the case.

The law related to the regulation of animal testing in the European Union is complex and there are many ways by which animal tested products can still be sold in the European Union. In this post, I will explain one of the legal loopholes that exists in the regulation of animal testing in the European Union. Before doing so, here is an overview of the background of the European Union’s testing and marketing ban.

 

Background

The regulation of cosmetic products in Europe began in 1976 with the Council Directive on the approximation of the laws of the Member States relating to cosmetic products (76/768/EEC) (1976 Directive).[1] The Directive’s main aim was to “comprehensively harmonise the rules in the [European] Community in order to achieve an internal market for cosmetic products while ensuring a high level of protection of human health”.[2] The 1976 Directive made no mention of animal testing or animal protection.

In 2003, following several amendments and numerous negotiations, the Directive 2003/15/EC of the European Parliament and of the Council of 27 February 2003 amending Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products (2003 Directive) came into force.[3] In addition to protecting human health, the 2003 Directive included a timeline for the implementation of a prohibition against the testing of cosmetics on animals. This prohibition took two forms: a testing ban and a marketing ban.

Testing & Marketing Bans

A testing ban is a prohibition of testing finished cosmetic products, ingredients or combinations of ingredients on animals, whereas a marketing ban is the prohibition of placing products on the European market if the ingredients, combinations of ingredients or finished products have been tested on animals.

The 2003 Directive was implemented in four phases in order to facilitate the transition to the full prohibition of animal testing and marketing of products having been tested on animals.

  1. 11 September 2004: Testing ban on the final formulation of all cosmetic products;
  2. 11 March 2009Testing ban for all ingredients or combinations of ingredients;
  3. 11 March 2009Marketing ban for cosmetics products where the final formulation, the ingredients or combination of ingredients were tested on animals, except testing for repeated-dose toxicity, reproductive toxicity and toxicokinetics; and
  4. 11 March 2013Marketing ban for all cosmetics products whose final formulation, ingredients or combination of ingredients were tested on animals, even if there exist no alternative methods for testing repeated-dose toxicity, reproductive toxicity and toxicokinetics.

As a result, since 11 March 2013:

  • No ingredients, combinations of ingredients or final formulations of cosmetic products can be tested on animals in the European Union 
  • No cosmetic products can be placed on the European market if their ingredients, combinations of ingredients or final formulations were tested on animals outside the European Union

On 11 July 2013, the 2003 Directive was replaced by Regulation No 1223/2009 on Cosmetic Products (Regulation 1223/2009). The main objective of Regulation 1223/2009 is to establish “rules to be complied with by any cos­metic product made available on the market, in order to ensure the functioning of the internal market and a high level of protec­tion of human health”.[4] It is worth noting that this objective makes no mention of the protection of animals.

 

Page Break Dots

 

The European Union is NOT 100% Cruelty-Free

While the implementation of the 2003 Directive is a great victory for international animal law and the protection of animals, it does not mean that the European Union is completely cruelty-free. Due to certain legal loopholes, a product can still be sold in the European Union even if it was tested on animals.

 

Cosmetic products that have been tested on animals outside the European Union can still be placed on the European market if the company doesn’t rely on the results of those tests to gain admittance onto the European Union’s market.

The 2003 Directive and Regulation 1223/2009 cannot be isolated from the legal context in which they were born. Notably, the development of international animal law is often complicated by existing international trade law.

Under Article III:4 of the General Agreement on Tariffs and Trade (GATT) of the World Trade Organization (WTO), States are prohibited from according a less favourable treatment to imported products than the treatment accorded to like products of national origin.[5] Parties to the GATT can contest any measures that violate this provision. Prior to enacting the 2003 Directive, the Commission of the European Communities and the Council of the European Union were concerned that the new directive would have a negative impact on commercial exchanges and would lead to a dispute with other State Parties at the WTO’s Dispute Settlement Body.[6] There have been two main challenges to the 2003 Directive and Regulation 1223/2009, none of which were at the WTO.

France first filed a challenge with the European Court of Justice in 2003. In French Republic v. European Parliament and Council of the European Union, France sought the annulment of Article 1(2) of the 2003 Directive which contained the provisions related to the testing and marketing ban.[7] Among other things, France argued that the 2003 Directive was incompatible with international trade law. Ultimately, the European Court of Justice dismissed the action and upheld the 2003 Directive.

 

The catch…

In 2014, the European Federation for Cosmetic Ingredients (EFCI) filed a request for a preliminary ruling from the European Court of Justice regarding the interpretation of the scope of the marketing ban found in Article 18(1)(b) of Regulation 1223/2009. In European Federation for Cosmetic Ingredients v Secretary of State for Business, Innovation and Skills, Attorney General, the EFCI argued that the Article 18(1)(b) marketing ban was not applicable if the animal testing had occurred outside the European Union to meet the requirements of regulations in other countries.[8] The Court disagreed and found that Regulation 1223/2009 “makes no distinction depending on where the animal testing at issue was carried out”.[9] In other words, the marketing ban is applicable even if the animal testing occurs outside the European Union to satisfy regulatory requirements in other countries. The Court’s ruling was definitely a victory from the animal law perspective. Unfortunately, there is a catch and Regulation 1223/2009 does not ban the marketing of all cosmetic products that were tested on animals.

The Court found that it is the “reliance on the results of animal testing in order to gain access to the EU market with a cosmetic product [that] is a condition sine qua non to trigger the marketing ban”.[10] In other words, a product will not be banned from the European Union market simply because it was tested on animals. It will only be banned if the company seeks to gain access to the European Union market by relying on the results of those tests to prove the safety of the product. “The meaning of Article 18(1)(b) would therefore be more accurately captured as: ‘animal testing should not be used in order to gain access to the internal market for cosmetics’.”[11] In other words, a brand can test on animals outside of the European Union and seek to gain access to the European market as long as it does not rely on the results of the animal testing to prove that the product is safe for human health.

 

Final Thoughts

This loophole highlights some of the complexities of animal law, especially in the context of its interconnectedness with other fields of law such as international trade law. Unfortunately, this is just one of the ways in which the European Union is not 100% cruelty-free. I caution you to be wary of vague cruelty-free statements and references to the European Union’s “complete ban on animal testing”. Consumers typically lack an in-depth understanding of legal intricacies and dishonest brands may take advantage of that to mislead us. (See why cruelty-free claims are not enough here!)

Please note that I am in no way seeking to discredit the international community’s laudable efforts to ban animal testing. The purpose of this article is to point out a common misconception and highlight the need to continue to be vigilant and informed consumers. By doing so, we can continue to work towards a complete ban on animal testing!

Did you know that this loophole existed? What are your thoughts on this issue? Let’s chat below! Please leave any comments or questions you may have in the comment section.

 


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European Union Cruelty-Free

 


Disclosure

**All legal opinions contained herein are my own. This analysis is provided for the reader’s personal knowledge only. It is not permitted to copy or reproduce any of the content in this post. Please note that the issues discussed herein have been simplified to facilitate the readability of this post. This article is not meant to be relied upon as a comprehensive assessment of the issue. My opinions are based on knowledge obtained from my legal education in common law (Juris Doctor) and my own legal research.**

 

Endnotes

[1] Council of the European Communities, Council Directive on the approximation of the laws of the Member States relating to cosmetic products (76/768/EEC) (1976 Directive), available online: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31976L0768&from=EN

[2] 1976 Directive, preamble.

[3] European Parliament and Council of the European Union, Directive 2003/15/EC of the European Parliament and of the Council of 27 February 2003 amending Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products (2003 Directive), available online: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32003L0015&from=EN

[4] European Parliament and Council of the European Union, Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 (Regulation 1223/2009), Article 1, available online: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32009R1223&from=EN

[5] World Trade Organization, General Agreement on Tariffs and Trade (GATT), Article III:4, available online: https://www.wto.org/english/docs_e/legal_e/gatt47.pdf

[6] European Parliament, Debates, Session of Monday 2 April 2001, in Strasbourg, available online: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20010402+ITEM-005+DOC+XML+V0//EN

[7] European Court of Justice, French Republic v European Parliament and Council of the European Union, Judgment of the Court (Grand Chamber) of 24 May 2005, Case C-244/03, available online: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62003CJ0244&from=EN

[8] European Court of Justice, European Federation for Cosmetic Ingredients v Secretary of State for Business, Innovation and Skills, Attorney General, Judgment of the Court (First Chamber) of 21 September 2016, Case C-592/14, (Judgment of the Court in Case C-592/14), paragraph 16, available online: http://curia.europa.eu/juris/document/document.jsf?text=&docid=183602&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=364919

[9] Judgment of the Court in Case C-592/14, paragraph 41.

[10] European Court of Justice, Opinion of Advocate General Bobek delivered on 17 March 2016 in C-592/14 (Opinion of Advocate General Bobek in Case C-592/14), paragraph 81, available online: http://curia.europa.eu/juris/document/document.jsf?docid=175149&doclang=EN

[11] Opinion of Advocate General Bobek in Case C-592/14, paragraph 87.

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