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Cosmetics Products in Europe

uropean Court of Justice: Judgment on animal testing and cosmetic product ingredients

September 21, 2016

Import and sale of cosmetic products containing ingredients which were tested on animals are subject of a complete ban in the European Union (EU). This ban of animal testing consists of the prohibition to market finished cosmetic products and finished cosmetic products containing ingredients which were tested on animals (“marketing ban”) and the prohibition to conduct animal testing on cosmetic products and ingredients in a Member State of the European Union (“testing ban”). The final transition period for this ban ended in March 2013 and has therefore  finally entered into force. The exact design of the underlying legislation has been discussed for many years between the European Commission, authorities, industry and animal protection organizations. However, many open questions remained even after the legal implementation.

On September 21, 2016, the European Court of Justice (ECJ), highest court for European law, pronounced the judgement in terms of animal testing procedures which were carried out for raw materials of cosmetic products to comply with regulations others than those in the EU. In the respective case, three companies, manufacturers of raw materials for cosmetic products, conducted animal testing in order to comply with the legal requirements of the Japanese and Chinese market. However, according to Article 18.1 of the Regulation (EC) No. 1223/2009 on cosmetic products, the placing on the market of cosmetic products shall be prohibited if these are “containing ingredients or combinations of ingredients which, in order to meet the requirements of this Regulation, have been the subject of animal testing (…)”.

The questioning on the interpretation of this paragraph has been officially provided by the European Federation for Cosmetic Ingredients (EFfCI) to the ECJ in the end of 2014. EFfCI is the European industry association which represents manufacturers of chemical and natural raw materials for the cosmetics industry as well as their suppliers and service providers since the year 2000. Intervening parties during the legal examination were the associations Cruelty Free International and European Coalition to End Animal Experiments.

The questions for the ECJ had been whether cosmetic ingredients which were tested on animals in order to comply with foreign but explicitly not with the European requirements shall be also prohibited in terms of Article 18.1. The words “in order to meet the requirements of this Regulation” were the crucial elements of the judgment. As a conclusion, Article 18.1 must be interpreted in a way that it may be prohibited to market products containing ingredients which were tested on animals if the resulting data of those tests has been performed to prove the safety of the cosmetic products for human health in order to comply with the European Cosmetics Regulation and for the purpose to placing the products on the EU market.

If results of animal testing are used for or even referred to within the safety assessments of cosmetic products (according to Article 10 of the Regulation (EC) No. 1223/2009), this prohibited purpose of “proving safety” will be fulfilled. In practice, it should be avoided to refer to such results within the safety assessment. The court does not provide more detailed information on the practical effects of this judgement, however, if not explicitly mentioned within the safety assessment, cosmetic products containing ingredient which were tested on animals for foreign markets may not be affected by the marketing ban of cosmetic products.

Please keep in mind that the above articles are for information purposes only and does not replace professional legal advice before acting according to the regulation mentioned in these articles.

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