Letter from the British Union for the
Abolition of Vivisection to the Private Secretary to the
Rt Hon Patricia Hewitt MP, Secretary
of State, Department of Trade and Industry
I refer to our telephone conversation this afternoon
and, as promised, summarise what I told you then.
We are extremely unhappy with the intransigence of
officials over the question of the WTO compatibility of a sale
ban on cosmetics tested on animals in the future. As you know,
this issue is due to be discussed at the Council of Ministers
The subject of cosmetics testing is, as you know,
a very important one for consumers, not just in the UK but throughout
the EU. Successive opinion polls have shown that there are overwhelming
majorities both for the ban of the testing of cosmetics on animals
and the ban on the sale of cosmetics so tested. In April, the
European Parliament voted overwhelmingly to maintain the sale
ban which is already in EU legislation (albeit unimplemented).
This was partly because a testing ban by itself would simply result
in EU multinationals commissioning testing outside the EU while
continuing to manufacture and sell within the EU). The BUAV applauded
the Government when, in 1997, it banned the testing of cosmetics
on animals in the UK. An EU-wide sale ban is now necessary to
make that ban effective.
We would not normally trouble the Secretary of State
on a matter with which she is not personally dealing. However,
I regret to say that we have serious concerns about the quality
of the advice which ministers are receiving. That is not a charge
which I make lightly and I will therefore explain it.
We have been in discussion with ministers and officials
about this issue for some time. The recent history is that, when
we met Melanie Johnson in September, she indicated that the only
obstacle in the path of the Government supporting a sale ban was
the negative advice ministers were getting from DTI lawyers on
the WTO issue. Lord Whitty made precisely the same point at the
NGO pre-Doha meeting a few weeks ago. Ms Johnson kindly agreed
to facilitate a meeting between David Thomas, the BUAV's solicitor,
and DTI lawyers.
In the meantime, we obtained a legal opinion from
Philippe Sands, a hugely respected international (including WTO)
lawyer. He is Professor of International Law at the University
of London and Global Professor of Law at New York University School
of Law. I attach his cv. I understand that Mr Sands has recently
been instructed by the Government on a WTO matter, indicating
that it recognises his expertise in this area.
Mr Sands prepared a very detailed opinion. I can
send you a copy (although the Department already has several).
"For all the reasons above, I conclude that
the current state of WTO law enables the EU to advance cogent
and persuasive arguments that it could, consistently with the
WTO obligations of the European Communities and its Member States,
adopt a ban on the sale in the EU of cosmetics that have been
tested on animals after a specified date in the future".
This supports what the BUAV has been arguing for
some time. Of course, no one can predict with certainty what would
happen if a ban was introduced and if another WTO member mounted
a challenge (which is itself highly speculative). That is always
true with the WTO because there is no facility for obtaining an
advance ruling. Its case law is still in its relative infancy.
However, the important point is that there are strong arguments
that a ban would be legally defensible. As the European Parliament
has long maintained, what is required is the political
will to ensure that public opinion, throughout the EU, is properly
reflected; if necessary, the legal issues can then be explored
through the WTO mechanism.
Mr Thomas met with officials, including Elaine Drage
and Ivan Smyth (whom you will know is a departmental lawyer),
this morning. Mr Thomas reports that:
Mr Smyth and Dr Drage were dismissive
of Mr Sands' Opinion (despite the fact that the Government clearly
recognises him as a WTO expert).
In particular, they accused him of making
an assumption that animal-tested and non animal-tested
cosmetics were not 'like' products (a key WTO issue), when in
fact it is clear from his Opinion that this was his (qualified)
Mr Smyth asserted that the key question
whether products were in a competitive relationship only arose
after it had been determined whether they were 'like' one
another. In fact, I am advised that the WTO appellate body in
the most recent and authoritative decision on the question of
like products, European Communities asbestos, stated
"Thus, a determination of 'likeness' under Article
III.4 is, fundamentally, a determination about the nature and
extent of a competitive relationship between and among products".
In other words, competitive relationship is crucial
to determining whether two products are 'like' one another. The
point here is that a significant number of consumers differentiate
between cosmetics which have been tested on animals and those
which have not, and indeed a whole sector of the industry, including
multi-national companies like the Body Shop, base their whole
marketing strategy on this differentiation.
All the officials were adamant that the
proposal from the Belgian presidency currently on the table included
an unconditional ban on the testing of cosmetics on animals,
when in fact the proposed ban is clearly expressed as conditional
on alternatives being validated in relation to ingredients (the
only type of testing still carried out). It would therefore appear
that advice to ministers has been based on a fundamental misunderstanding.
Officials made it clear that they supported
the Belgian presidency proposal. In so doing, they were forced
to concede that, because the proposal includes a limited sale
ban (albeit a wholly unsatisfactory one), this meant that animal
welfare, and animal testing in particular, could in principle
fall within the exceptions to free trade under Article XX of GATT.
This is despite the fact that the Department has been arguing
the contrary in correspondence with the BUAV for several months.
Officials claimed to be certain that
a sale ban would be met with a WTO challenge from the US. This
claimed certainty is in spite of the fact that (a) no challenge
has been intimated to the WTO during the several years the existing
sale ban has been on the EU statute book; (b) the US would have
to explain why it had relied on precisely those WTO arguments
of principle on which the BUAV is now relying when recently enacting
legislation banning the import and sale of dog and cat fur; and
(c) the ban would not, in practice, bite for some time (because
of the lead-in time between developing and marketing a new product
and because the Commission accepts that there are already more
than 8,000 ingredients safely used in cosmetics without the need
for any further animal testing).
As we discussed, I would very much welcome a meeting
with the Secretary of State this week so that we can discuss our
concerns. There is a great deal of media interest in this issue
in the run-up to the Council of Ministers meeting and I am sure
the Government would wish to find a way of resolving the current
I look forward to hearing from you by return.
19 November 2001