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The EU ‘ban’ on animal-testing of cosmetics: why we still have a long way to go

17 November 2016

If you ask the average person on the street about animal-testing of cosmetics, they either have no idea whatsoever or have heard the European Union banned it and thus assume it's a non-issue.

Unfortunately, they'd be wrong. It's not so simple.

And don't get me wrong, either.

I'm delighted the EU has taken this step and sent a clear signal of disapproval for what is an unnecessary and cruel practice. The decision has already lead to positive changes in other countries around the world, too.


And this is a big but.

It doesn’t mean that consumers in the EU can walk into a beauty store and blindly trust that nothing there has been animal-tested. There are some massive loopholes in the EU ban which you need to know about.

Why animal tested cosmetics are still sold in the european union

So, what has the EU banned exactly?

The ban is found in a piece of legislation called the Cosmetics Regulation. Article 18 of the Regulation splits the ban into two main parts:

A ban on testing ingredients or finished products on animals in the EU.

A ban on marketing cosmetics in the EU which have been tested on animals or which contain ingredients that have been tested on animals.

OK....that sounds like it covers what's the problem?

Well, the Regulation was pretty badly written. It caused a lot of confusion and has already been challenged three times.

The third case made it all the way to the European Court of Justice.

Before the court spends any time looking at a case, somebody called the Advocate General (“AG”) gives their opinion. The AG for this case, AG Bobek, was a hoot. He peppered his writing with plenty of criticisms (best enjoyed if you read them with a hoity-toity voice ;) ):

As far as the interpretation of the Cosmetics Regulation is concerned...the resulting text is not a paragon of clarity.
I sympathise with the plight of anyone trying to make sense of [it]. It is not well drafted.

Ouch! Okay, so it seems there are some problems.

What was this particular case about?

The European Federation for Cosmetic Ingredients (EFCI) is a big trade association for cosmetics companies in Europe. Three of their members tested ingredients on animals in order to use them in cosmetics bound for Japan and China.

The EFCI argued that the companies should be allowed to sell these products in the EU, too.

In other words, the question became:

Can companies place cosmetics on the EU market that contain ingredients tested on animals for the purpose of satisfying laws in third countries?

What did the court say?

The court ultimately followed the opinion of the AG. Which was: it all comes down to not relying on animal testing.


You can still test your product on animals, just make sure you also do some non-animal testing and rely on that when entering the EU market.

Wowee. A big blow to our dreams of a cruelty-free cosmetics industry.

But this isn’t actually all that new.

In 2013 the EU Commission admitted it's not the act of testing on animals outside the EU that is the no-no, but rather the reliance on safety data from that testing.

AG Bobek in the current case said that two things are clear. Firstly, the legislation does not create a total ban on animal testing. Well, that much we already knew. The ban is solely about the cosmetics sector. Animal testing is not banned for medical purposes and is also allowed for the registration of certain chemicals (we’ll come back to this in a minute).

The second thing the legislation does not create a total ban on, according to the AG, is the marketing of animal-tested cosmetics.

What, wait?

Wasn’t that the whole point of the so-called ‘marketing ban’, above?

Well, the AG explains that the Regulation requires every product for sale in the EU to have what is called a Product Information File. The data from any animal testing conducted under other laws has to be included in this file. In other words: it’s perfectly acceptable for there to be products for sale in the EU with animal-testing data in their file.

So what does this mean for consumers?

We need to understand that the EU is still far from being free of animal-tested cosmetics.

Unfortunately, some people misunderstood the case. It’s been widely reported as a kind of victory for animal rights, and the judgment has wrongly been summarised as concluding that ‘there will be no exceptions to [the] blanket ban’.

One article* literally says, “these products will now be definitively prohibited from being imported and sold within the Union,” referring to the products tested on animals by the three companies at the centre of the case.

Another article* stated that “the Court of Justice...confirmed that cosmetics containing ingredients tested on animals outside of the EU after March 2013 cannot be sold.”

WRONG. Nowhere did the court say that.

What it actually said (in other words) was this:

You can still sell your animal-tested cosmetics in the EU, just throw some non-animal tests on top and use those when you apply to get in.

It gave the companies an OUT.

Where to now?

There are absolutely positives to be taken from the direction the EU is headed.


We do have to be clear on where we currently stand. And where we currently stand, there are significant loopholes!

Loophole 1: Brush it under the carpet and throw a cherry on top

= Companies wanting to sell in the EU can test on animals all they like, so long as they throw some non-animal testing in there too.

The worst part is that companies may label the product ‘cruelty-free’, just because it entered the EU on the basis of non-animal testing!

...although it may appear to be inconsistent with the ban, companies may still be testing on animals to fulfil regulatory requirements in other countries.

Cruelty Free International

India has already experienced this problem since banning the sale of animal-tested cosmetics in 2014. The country has decided to require a statement that the products being imported have not been tested on animals anywhere in the world (since November 12 2014, the relevant cut-off date).

But the EU isn’t at the point of following India. At least not yet:

[W]e cannot control what happens in other countries and cannot impose our regulatory standards on others. A product from China can be tested on animals but once in the EU, we will make sure it passes a safety test using alternative methods before placing it on the EU market.

Sabine Lecrenier, (then)Head of the Health Technology and Cosmetics unit at the European Commission

Interestingly, the Cosmetics Regulation did originally ban the sale of cosmetics in the EU that had been tested on animals anywhere in the world. This part of the law had to be scrapped because many EU member states feared it may infringe international trade law.

AG Bobek also spoke about this in the current case. He said that making producers choose between marketing their product in the EU or a third country where animal-testing is mandatory would create a type of export/import ban. This would be a serious impediment on international trade.

Hence the pressure the EU is putting on China to stop requiring animal-testing. More to come on this in a future post!

Loophole 2: A wolf in sheep’s clothing

= Companies could conduct animal-testing on ingredients under the guise of creating pharmaceutical or cleaning products, and then go on to use those same ingredients in cosmetics in the EU.

Cosmetics labelled as cruelty-free could contain ingredients tested on animals under other EU legislation known as REACH (Registration, Evaluation and Authorisation of Chemicals). This legislation allows animal-testing to ensure the safety of chemical substances.

REACH says animal testing should be a last resort, but gives plenty of broad exceptions (environmental protection, worker safety and multi-use ingredients). These exceptions are widely acknowledged.

The risk of companies testing cosmetic ingredients on animals under the guise of using those ingredients for pharmaceutical or other purposes is very real. This is an issue with multinationals that produce other products besides cosmetics. Unfortunately, we already have proof that they're aware of this…

Giant multinational Proctor & Gamble (owner of Head & Shoulders, Max Factor and Olay, to name just a few) suffered embarrassment in 2002 from a leaked internal memo. They were already counting on the REACH loophole as well as the first loophole above:

We can still carry out safety tests for other[s] and apply the results to cosmetics. Equally, we can conduct tests on cosmetic ingredients for regulatory purposes outside of the EU and still be able to market them in EU countries.


And to show this is still a hot issue, a recent complaint by PETA has put the EU Commission and the European Chemicals Agency under pressure to change a statement on the latter’s website. PETA says the advice could lead to companies wrongly labelling animal-tested cosmetics as cruelty-free.

Loophole 3: Products already on the market

= There are still thousands of products on the EU market today that were tested on animals before the 2013 cut-off date.

And by ‘on the EU market’, I don’t simply mean products physically on the shelves right now. Any product already approved for the market and tested on animals before the cut off date may remain on the market indefinitely (i.e. new batches can continue to be added to the shelves).

Obviously it wasn’t possible to legislate without such a cut-off date.


It still forms an important reason why consumers cannot conclude that the ban means all products in the EU are cruelty-free.

In the end, it’s more of a ‘reduction’ than a ban.

Any reduction in the amount of animal testing on cosmetics is absolutely welcomed. Hey, the EU is still miles ahead of most countries in the world on this matter.

And that’s a great thing.

But we shouldn’t be referring to it as a blanket ‘ban’, and in doing so mislead consumers into assuming all cosmetics sold in the EU are free from animal testing.

We are still very far away from that being the case.

Over to you:

Were you aware of this so-called ban on animal-testing of cosmetics?

Did you expect it to mean that all cosmetics sold in the EU today are cruelty-free?

Leave a comment and join the discussion!

*I won’t name and shame but if you want the sources you can google the quotes or contact me ;)

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  • Thank you for this informative article! Loved it. Keep up the good work :)

* Powered by yandex.translate. Note that these are automised, rough translations and may not reflect the writer's intent perfectly.

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