LEGALLY AND POLITICALLY IMPORTANT: CLEARED
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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| Department:
| Trade and Industry |
| Basis of consideration:
| Minister's letter of 27 July 2000
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| Previous Committee Report:
| HC 23-xxi (1999-2000), paragraph 1 (14 June 2000)
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| 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:
| Cleared |
Background
12.1 Council Directive 76/768/EC[41] seeks to protect public health by laying down rules governing
the contents, labelling, and conditions for use of cosmetic products
within the Community. In response to growing animal welfare concerns,
an amendment would have introduced with effect from 1 January
1998 a ban on the marketing of such products if they contained
ingredients (or combinations of ingredients) which had been tested
on animals; but, since there had in the meantime been insufficient
progress in developing satisfactory methods to replace animal
testing, this deadline was subsequently extended to 30 June 2000.
12.2 However, as a result of doubts which
had arisen in the meantime over the drafting of the proposed ban,
and its compatibility with the rules of World Trade Organisation
(WTO), the Commission proposed in April of this year that the
change envisaged should be deferred for another two years, and
that Council Directive 76/768/EEC should be further amended. The
Commission's particular concern was that the WTO forbids any discriminatory
measures between similar products, and more especially states
that imported products shall be treated no less favourably than
like products of national origin. It suggested 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 as contrary to WTO rules.
12.3 The Commission 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; and
- 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).
12.4 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.
12.5 In his Explanatory Memorandum of 11
May 2000, the Minister for Competition and Consumer Affairs at
the Department of Trade and Industry (Dr Howells) said that the
key issues contained in the proposal 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 regarded the policy implications of the proposal as limited,
but said that, unlike the marketing ban due to come into force,
it is WTO compatible, and hence avoids the prospect of retaliatory
action. He also pointed 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.
12.6 In the conclusion to our Report of
14 June 2000, we noted that the Government considered the proposal
will have limited policy implications within the UK, and we welcomed
its aim of reducing, and eventually eliminating, tests in this
area involving animals. However, we said that, before clearing
it, we would like further clarification on three aspects of the
proposal.
12.7 First, the existing prohibition on
marketing would have affected both products produced within the
Community and those imported from third countries, and thus did
not appear to us to treat the latter less favourably than the
former. In view of this, we asked the Minister to provide a more
convincing explanation as to precisely why the intended measure
should be regarded as susceptible to challenge within the WTO.
12.8 Secondly, we noted that the circumstances
in which the proposal would actually bring into effect the ban
on testing ingredients on animals are far from clear. On the one
hand, it 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. We therefore asked
whether this last provision did not undermine the point of the
initial three year deadline; and whether it also meant that the
prohibition would come into force after five years irrespective
of whether alternative methods are available at that stage.
12.9 Thirdly, the Minister had indicated
that, where cosmetic manufacturers believe they need to carry
out animal tests, this is done outside the UK and increasingly
outside the Community. We said that we would be concerned if such
a practice were to weaken the impact of the current voluntary
ban within the UK, and that we would be interested to know how
widespread it is.
Minister's letter of 27 July 2000
12.10 In his letter of 27 July 2000, the
Minister has sought to address these concerns. On the point about
WTO compatibility, he says:
"A WTO challenge could
arise where a cosmetic product coming from a third country which
had been tested on animals was prohibited under the marketing
ban whereas a 'like' cosmetic product produced in the Community
and not tested on animals was not. In such an event it could be
argued that the fact that Community cosmetics tested on animals
would also be prohibited is irrelevant, and that what is at issue
is whether the imported product is being treated less favourably
than that accorded to 'like' products of national origin in respect
of all laws, regulations and requirements affecting their internal
sale, offering for sale, purchase or use. If such a case was taken
by a third country the outcome would hinge on whether the imported
and domestic products were 'like' products and if so whether the
discriminatory treatment could be justified under the exceptions
permitted under Article XX GATT (see below).
"In addition, the marketing ban on cosmetics
tested on animals might be challenged by a third country as being
in breach of Article XI GATT as effectively amounting to a restriction
or prohibition on the importation of such cosmetics into the Community.
It is very common for cases involving an alleged breach of Article
III.4 GATT to also include a claim for breach of Article XI (usually
as alternatives). If this claim was upheld by a Panel then the
Community would again have to defend the prohibition on the basis
that the measure fell within one or more of the permitted exceptions
in Article XX GATT.
"The Article XX GATT exceptions referred to
above are interpreted narrowly and the only ones which might be
invoked in this case are Article XX(a) and XX(b). The scope of
the Article XX(a) exception (measures necessary to protect public
morals) has never been determined by a WTO panel or the Appellate
Body and it is questionable whether it could be successfully invoked
to defend the marketing ban on animal tested cosmetics. In any
event Article XX(a) is couched in terms of measures which are
'necessary' to protect public morals. Using the approach taken
by Panels and the Appellate Body in other cases, the word 'necessary'
must be read as meaning that no less trade-restrictive alternative
is available to the Community to achieve its desired objective.
It could be difficult to argue that this was the case given that
the Community has come forward with an alternative proposal which
is clearly less trade-restrictive.
"As regards the Community placing reliance on
the Article XX(b) exception (measures necessary to protect human,
animal or plant life or health) it is difficult to see how the
Community could establish that the ban on animal testing achieves
that goal. The protection of animal life and health in the Article
XX(b) context is taken to relate to issues such as protection
from diseases rather than protection from testing. The use of
animal testing in no way adversely affects the cosmetic product's
characteristics or quality and it is therefore difficult to see
how the Community could justify its marketing ban on health grounds.
In any event, Article XX(b) is also subject to the 'necessary'
requirement and the same comment made above about the meaning
of the term 'necessary' would apply here as well. If there is
a less trade restrictive means of achieving the Community's stated
objective then the Community will not be able to rely on the Article
XX(b) GATT exception.
"There are also a number of provisions in Article
2 of the Technical Barriers to Trade (TBT) Agreement, which may
be relevant.
"Article 2.2 of the TBT requires WTO Members
to ensure that technical regulations are not prepared, adopted
or applied with a view to or with the effect of creating unnecessary
obstacles to international trade. It is arguable that a third
country would seek to argue that the marketing ban had the effect
of creating an unnecessary obstacle to international trade and
could not be saved under the legitimate objectives provided for
in Article 2 of the TBT; and
"Article 2.3 TBT provides that technical regulations
shall not be maintained if the circumstances or objectives giving
rise to their adoption no longer exist or if the changed circumstances
or objectives can be addressed in a less restrictive manner. As
stated above in relation to GATT it is difficult for the Community
to argue that it cannot achieve its stated objective in a less
trade restrictive manner when it has brought forward a proposal
showing how this might be achieved."
12.11 As regards our second point about
the circumstances in which the ban would actually come into effect,
the Minister points out the current proposal is similar in its
construction to that contained in the most recent amendment. He
goes on to suggest that the Commission's intention would appear
to be to give the industry and the scientific establishment as
long as could reasonably be expected (ultimately five years) to
develop sufficient alternatives to animal testing, but that a
ban would come into effect after three years if the Commission
and its scientific advisers felt that sufficient progress had
been made by then. If such progress had not been made, a further
two years could be allowed, following which the prohibition would
come into force anyway.
12.12 Finally, as regards the possible weakening
of the impact of the ban as a result of UK manufacturers testing
overseas, the Minister says that the industry is extremely guarded
with any information, but that it is not thought that the introduction
of the voluntary ban in the UK led to a noticeable increase in
testing overseas by UK companies. He adds that in general the
UK cosmetics industry has welcomed the reduction and replacement
of animal testing, and been at the forefront of research into
alternatives. He says it is not expected that this proposal will
weaken the impact of the current voluntary bans in the UK.
Conclusion
12.13 We are grateful to the Minister
for his letter, and in particular for his very full explanation
of the reasons why the Directive as it stands could be regarded
as incompatible with WTO rules. In the light of this further information,
we are now clearing the proposal.
41 OJ No. L 262, 27.9.76, p.169. Back
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