Select Committee on European Scrutiny Sixteenth Report


The European Scrutiny Committee has agreed to the following Report:


The original proposal

1. Council Directive 76/768/EC aims to protect public health by specifying the conditions under which cosmetic products may be marketed within the Community. The Directive has since been amended on a number of occasions, and the Sixth Amendment 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. Because there had been insufficient progress in developing satisfactory methods to replace animal testing, this implementation date was subsequently deferred to 30 June 2000.

2. However, the Commission proposed in April 2000[1] further amendments arising principally from doubts over whether the changes due to take place were compatible with the rules of the World Trade Organisation (WTO). It said that the latter forbid any discriminatory measures between similar products, and state that imported products shall be treated no less favourably than like products of national origin. It therefore 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 to be contrary to WTO rules.

3. It 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that the intended prohibition on the marketing of products whose ingredients have been tested on animals should be rescinded, but that instead: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 in 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).

4. Although the Commission recognised that these prohibitions would not apply to imported products, it said that, once methods not involving animals had been validated within the Community, it would make efforts within the OECD and in bilateral negotiation to secure their international acceptance as well as mutual recognition of test data. It also proposed 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.

5. The Government's view was that the proposal was in line with practice within the UK (where a voluntary ban, preventing the testing on animals of any cosmetic product or ingredients or combinations of ingredients, was already in place). The policy implications of the proposal were thus limited, but, unlike the marketing ban introduced by the Sixth Amendment, it was seen as WTO-compatible, and hence as avoiding the prospect of retaliatory action.

6. In their Report of 14 June 2000[2], our predecessors said that, before clearing the proposal, they wanted further clarification on a number of points. In particular, they pointed out that the prohibition on marketing would have affected both products produced within the Community and those imported from third countries, and thus did not appear to treat the latter less favourably than the former. They therefore asked for a more convincing explanation as to precisely why the intended measure should be regarded as susceptible to challenge within the WTO.

7. This was provided in a letter of 27 July 2000, and the full text of the Government's reply on this point is at Appendix 1. In the light of this explanation, our predecessors cleared the proposal on 25 October 2000[3].

The amended proposal

8. In an Explanatory Memorandum of 14 November 2001, the Parliamentary Under-Secretary of State for Competition, Consumers and Markets at the Department of Trade and Industry (Miss Melanie Johnson) said that the European Parliament's first reading of the original proposal on 3 April 2001 had sought to reinstate the marketing ban. Since this would have re-opened the question of WTO compatibility, it was unacceptable to the Council, and several compromise texts had been tabled without any agreement being reached among the Member States. However, the Belgian Presidency had produced an unofficial text, which it was hoping might be agreed at the Internal Market, Consumers and Tourism Council on 26 November.[4]

9. This would make a number of changes, of which the most significant would be the introduction of:

  • a marketing ban for finished cosmetic products which had been subject to animal testing, if an alternative testing method had been accepted and published by the Organisation for Economic Cooperation and Development (OECD);

  • a marketing ban within the Community for cosmetic products containing ingredients which had been subject to animal testing where there was an alternative method which had been accepted and published by OECD;

  • a ban on the carrying out of animal tests on finished cosmetic products within the Community; and

  • a ban on the carrying out of animal tests on cosmetic ingredients within the Community where such tests can be replaced by one or more of the alternative tests listed in an Annex to the Dangerous Substances Directive (67/548/EEC), or in a new Annex to the Cosmetics Directive, which will contain a list of validated and published alternatives to animal tests.

10. The Presidency text would also have required any additional data needed to carry out a risk assessment on potential carcinogens, mutagens or substances toxic to reproduction in cosmetic products to be generated only if no animal tests are used, or if the substances cannot be replaced by other substances; and it would have allowed guidelines to be prepared so that manufacturers can make claims indicating that no animal tests have been carried out in the development or manufacture of a cosmetic product.

11. The Minister said that the policy implications of the amended proposal were limited, as the restrictions in it were in line with the voluntary ban already in place in the UK, as were the related guidelines. She therefore believed that the Presidency text should not affect the costs and benefits of the proposal, but that, compared with the Directive as it stood, it should lessen the risk of a challenge in the WTO (or at least enable the Community to present a credible defence if there were such a challenge).

12. When we considered this on 21 November 2001, we noted that the main effect of the proposal would, once again, be on cosmetics imported from third countries, where the aim would be to bring these back within the ambit of the ban, albeit under certain conditions. However, we went on to say:

"we share the concern of our predecessors that World Trade Organisation rules should apparently require imported cosmetics to be subject to less stringent conditions than those produced within the Community. We therefore consider that, before the Government commits itself to such a course, the House should have a chance to consider both the legal arguments involved and the practical impact of the arrangements envisaged in the Presidency text. We are accordingly recommending this document for debate in European Standing Committee C, and we would expect the Government to maintain a scrutiny reserve until that debate has taken place."[5]

13. Despite this very explicit statement, the Secretary of State for Trade and Industry wrote on 22 November to say that she might be lifting the UK scrutiny reserve, in order to vote in favour of the text at the Council on 26 November. She justified this on the grounds that, without the UK's positive vote, it would necessarily form part of a blocking minority, and that the text would fall. She added that she believed it was important this should not happen because of the UK scrutiny reserve, and that it was important for the document to move forward quickly to replace the current non-WTO-compatible full marketing ban. The outcome of the Council was confirmed in a written parliamentary answer[6] by the Secretary of State on 10 December 2001, in which she said:

"The Council reached political agreement on the Seventh Amendment to the Cosmetics Directive which will introduce a EU-wide ban on animal testing of cosmetic products. This means that cosmetic products cannot be sold in the EU if the finished product, or any of its ingredients or combinations of ingredients, have been tested on animals, once an alternative to that test has been accepted and published by the OECD."

14. It was this flagrant breach of the scrutiny reserve resolution which prompted us to ask a Department of Trade and Industry Minister to give oral evidence. In the meantime, the Secretary of State wrote a further letter of 18 December (Appendix 2), the key passage of which reads:

"I understand your concerns, but I stand by my decision to lift the scrutiny reserve in this particular case. A negative vote by the UK at the IMCTC [Internal Market, Consumers and Tourism Council] would have helped to create a blocking minority and the text would have failed. It is important that this dossier moves forward in Europe as quickly as possible, so that the non-WTO compatible full marketing ban which appears in the existing 6th Amendment to the Cosmetics Directive can be replaced by a marketing ban linked to internationally validated alternative tests to animal testing. We believe this will deliver very real benefits in animal welfare; for the first time, it will commit all Member States to banning any testing of cosmetics on animals across the European Union, and enshrine in EU law a firm commitment to banning sales of cosmetics tested on animals where there are valid alternative tests."

Oral evidence

15. We subsequently took oral evidence on 9 January 2002 from the Parliamentary Under-Secretary of State for Competition, Consumers and Markets at the Department of Trade and Industry (Miss Melanie Johnson). We also had before us copies of letters sent by the British Union for the Abolition of Vivisection to the Secretary of State immediately before the November Council (Appendix 3) and to members of the European Parliament immediately afterwards (Appendix 4). In addition, we have since received material from the Royal Society for the Prevention of Cruelty to Animals.

16. The Minister confirmed that the Government lifted its scrutiny reserve "because a negative vote by the UK would have created a blocking minority" (Q.2). In the light of this, we questioned her closely on three separate, but related, points. First, we asked why, in view of the terms of our Report of 21 November 2001, the Government could not have asked for the vote to be deferred until a later Council meeting, in order to enable the House to give its views first. She said that it was essential for the Seventh Amendment to be agreed by 30 June 2002, so as to replace the unimplemented Sixth Amendment. She added that this would not have been possible without political agreement at the November Council, given the various remaining stages, including the European Parliament's Second Reading, and the possible need thereafter for conciliation between the Parliament and the Council.

17. Secondly, in view of the stress placed by the Commission (and the Government) on the possibility of challenge to the Sixth Amendment within the WTO, we asked (QQ. 6 & 7) what evidence the Government had that such a challenge was imminent, and whether there were not cogent arguments for suggesting that the Community would have a good defence if this were to be forthcoming. In reply, the Minister said that, although a challenge had not yet materialised, this was essentially because the Community had still to enact the Sixth Amendment, and that the United States had indicated that, were it to do so, a challenge would be made. She added that her legal advice, and that of the Commission, was that the Sixth Amendment would "be likely to be in contravention of WTO rules", that there would then be a danger of losing the progress that had been made to date in restricting animal testing, and in particular that the Community would probably enter a three or four year period of uncertainty. She also reiterated this last point in response to our asking (Q.8) whether the lengthy WTO process would not have left plenty of time for the Community to act in the event of it adopting the Sixth Amendment and then facing a challenge.

18. Finally, we sought clarification of the statement in the Secretary of State's letter of 18 December 2001 that the proposal adopted will "for the first time... commit all Member States to banning any testing of cosmetics on animals across the European Union". In particular, we suggested to the Minister (Q.23) that such a commitment was an integral part of the Sixth Amendment, and that it would be more accurate to say that what had been agreed by the Council represented a weakening of that commitment. She took the view that it was important to concentrate on what was practically achievable and legally sustainable, and that for the Council to have endorsed the Sixth Amendment would have undone the whole process — to which she stressed the Government was committed — of improving welfare and eventually phasing out the testing of cosmetics on animals once validated alternative tests were in place.


19. We are grateful to the Minister for her evidence. We accept that it is the Government's wish to see an end to the testing of cosmetics on animals, and that there would have been a number of uncertainties in proceeding with the Sixth Amendment. We also accept that, although the Seventh Amendment achieves less in terms of animal welfare than the proposed Sixth Amendment, it does represent an advance on the present position.

20. Having said that, we are concerned about two aspects of the Government's position. In her evidence, the Minister stressed the need to enact the Seventh Amendment by 30 June 2002, in order to avoid the Sixth Amendment coming into force after that date. However, as we understand it, that deadline is one set internally by the Community, and it is of course not unknown for deadlines to be changed: indeed, as we have pointed out in paragraph 1 above, the Sixth Amendment was originally due to come into operation in 1998 — a date which has since been deferred first to 30 June 2000, and then (it would appear) to 30 June 2002. In view of this, we see no over-riding reason why the Government could not have pressed for a further limited deferral, and indeed, given the unusually explicit nature of the conclusion to our Report of 21 November 2001 (paragraph 12 above), we would have expected it to argue for this.

21. Secondly, we have noted both the Government's reluctance, in the light of its legal advice about the likelihood of a successful legal challenge to the Sixth Amendment, to see that measure adopted, and the reasons for that reluctance. To a degree, we understand those reasons, though equally there are grounds for arguing that, even if the Community had gone ahead and subsequently faced a challenge within the WTO (itself by no means certain), it nevertheless had a reasonable defence. There are also those who would argue that, as a matter of policy, this is what it should have done, particularly as the acceptance of an alternative test within the OECD requires unanimity, which might not be forthcoming in view of some of the national interests involved.

22. In the light of these points, we think there is a case for giving the House the opportunity to probe the Government further, particularly on the legal position within the WTO. For that reason, we stand by our earlier recommendation that this document should be debated in European Standing Committee C.

1   (21170) 7716/00; see HC 23-xxvii (1999-2000), paragraph 12 (25 October 2000). Back

2   (21170) 7716/00; see HC 23-xxi (1999-2000), paragraph 1 (14 June 2000). Back

3   See HC 23-xxvii (1999-2000), paragraph 12 (25 October 2000). Back

4   (22837) -; see HC 152-vii (2001-02), paragraph 2 (21 November 2001), Amended proposal for a 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. Back

5   (22837) -; HC 152-vii (2001-02), paragraph 2 (21 November 2001). Back

6   Official Report, 10 December 2001, cols. 652-3W. Back

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