TWENTY-FIRST REPORT
The European Scrutiny Committee has made further
progress in the matter referred to it and has agreed to the following
Report:—
ANIMAL TESTING AND COSMETIC
PRODUCTS
(21170)
7716/00
COM(00) 189
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Draft Council Directive amending for the seventh time Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products.
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| Legal base:
| Articles 95, 152(1) and 153(2) EC; co-decision; qualified majority voting
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| Document originated:
| 5 April 2000 |
| Forwarded to the Council:
| 7 April 2000 |
| Deposited in Parliament:
| 27 April 2000 |
| Department: |
Trade and Industry |
| Basis of consideration:
| EM of 11 May 2000 |
| Previous Committee Report:
| None |
| To be discussed in Council:
| Following receipt of European Parliament opinion
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| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| Not cleared; further information requested
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Background
1.1 The main aim of Council Directive 76/768/EC[8]
is to protect public health by specifying the conditions under
which cosmetic products may be marketed within the Community.
It includes provisions governing their contents, labelling, conditions
for use, whilst methods for testing composition and purity are
laid down in subordinate Commission legislation. The Directive
has subsequently been amended on a number of occasions, and, in
response to growing animal welfare concerns, the most recent (sixth)
amendment following the adoption of Council Directive 93/35/EC[9]
introduced with effect from 1 January 1998 a ban on the marketing
of such products if they contain ingredients (or combinations
of ingredients) which have been tested on animals. Directive 93/35/EC
did, however, allow that date to be postponed if there had in
the meantime been insufficient progress in developing satisfactory
methods to replace animal testing, and Commission Directive 97/41/EC
subsequently extended the implementation date to 30 June 2000.
However, as a result of doubts which have arisen over the drafting
and enforceability of the sixth amendment, the Commission has
now proposed that the main Council Directive should be amended,
and that, pending adoption of the proposed change, the implementation
date for the existing measure should be deferred for a further
two years to 30 June 2002.
The current proposal
1.2 In presenting its latest proposal, the
Commission highlights that the two chief considerations which
need to be taken into account in this area are consumer safety
and animal welfare. It stresses that it is not possible to abandon
safety testing, either in relation to new substances or to new
data which might appear on existing substances, but that the reduction
(and the elimination "wherever and as soon as possible")
of animal suffering in the testing process is an objective common
to all parties involved.
1.3 However, the Commission also says that,
for any measures to be effective and enforceable, it is also necessary
to take account of the constraints arising from compliance with
international trade rules, and in particular those of the World
Trade Organisation (WTO). According to the Commission, the latter
forbid any discriminatory measures between similar products, and
more especially state that imported products shall be treated
no less favourably than like products of national origin. The
Commission then goes on to suggest that, as the test method does
not have any physical effect on cosmetic products, a prohibition
based on whether or not ingredients have been tested on animals,
and which applies irrespective of whether such products have been
manufactured in the Community or imported from third countries,
could be considered to be contrary to WTO rules.
1.4 It has therefore proposed that the intended
prohibition on the marketing of products whose ingredients have
been tested on animals should be rescinded, but that instead:
- the performance of tests on animals on the territory
of the Member States should be prohibited so far as finished
cosmetic products are concerned (on the grounds that their
safety can already be assessed from knowledge of their ingredients
and by methods which do not involve the use of animals);
- in the case of ingredients (where suitable
alternative tests are not yet available), tests on animals should
be prohibited once an alternative method has been scientifically
validated, but that, even if such a method has not been agreed,
the proposed prohibition should come into force after three years
(or five years, if there has still been insufficient progress
in developing satisfactory methods to replace animal testing).
1.5 The Commission recognises that these
prohibitions would not apply to imported products, but it says
that, once methods not involving animals have been validated within
the Community, it will make efforts within the OECD and in bilateral
negotiation to secure their international acceptance as well as
mutual recognition of test data. In addition, it is proposing
to improve consumer information by setting out guidelines to prevent
misleading claims by manufacturers about the testing methods used.
The Government's view
1.6 In his Explanatory Memorandum of 11
May 2000, the Minister for Competition and Consumer Affairs at
the Department of Trade and Industry (Dr Howells) says that all
of the three key issues are already in line with UK practice,
and in particular that this country already has a voluntary ban
in place, which prevents the testing on animals of any cosmetic
product or ingredients or combinations of ingredients. He thus
regards the policy implications of the proposal as limited, but
says that, unlike the marketing ban introduced by the existing
sixth amendment, it is WTO compatible, and hence avoids the prospect
of retaliatory action against Community trade by any WTO members
wishing to challenge it. He also points out that three alternative
tests are available to ensure the safety of cosmetic products;
that for those areas where such alternatives are not yet available,
data from animal tests in previous years is relied upon; and that,
where manufacturers believe they need to carry out animal tests,
this is done outside the UK and increasingly outside the Community.
1.7 The Minister has also provided with
his Explanatory Memorandum an interim Regulatory Impact Assessment,
pending the comprehensive consultation which it is planned to
carry out with the industry. However, given the voluntary ban
which already exists, he does not consider industry would experience
any direct costs as a result of the proposal, except perhaps as
regards labelling (though these are not expected to be significant).
According to the Assessment, the main costs are likely to fall
on enforcement authorities, but these are put at no more than
£40,000 a year.
Conclusion
1.8 We note that the Government considers
the proposal will have limited policy implications within the
UK, and of course we welcome its aim of reducing, and eventually
eliminating, tests in this area involving animals. However, before
clearing it, we would like further clarification on three aspects
of the proposal.
1.9 First, the existing prohibition on
marketing would have affected both products produced within the
Community and those imported from third countries, and thus does
not appear to treat the latter less favourably than the former.
In view of this, we would like the Minister to provide a more
convincing explanation than that supplied by the Commission as
to precisely why the intended measure should be regarded as susceptible
to challenge within the WTO.
1.10 Secondly, the circumstances in which
the ban on testing ingredients on animals would actually come
into effect are far from clear. On the one hand, the proposal
envisages this would occur when alternative test methods are available,
but it then appears to impose a three year deadline, regardless
of whether an alternative method has been validated by then. Having
done that, it also provides for a further two year postponement
if insufficient progress has still been made in developing satisfactory
alternative methods. Does this last provision not undermine the
point of the initial three year deadline; and does it also mean
that the prohibition would come into force after five years irrespective
of whether alternative methods are available at that stage?
1.11 Thirdly, the Minister indicates
that, where cosmetic manufacturers believe they need to carry
out animal tests, this is done outside the UK and increasingly
outside the Community. We would be concerned if such a practice
were to weaken the impact of the current voluntary ban within
the UK, and we would be interested to know how widespread it is.
8 OJ No. L 262, 27.9.76, p.169. Back
9
OJ No. L 151, 23.6.93, p.32. Back
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