Select Committee on European Scrutiny Sixteenth Report


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

Cosmetics Directive

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 next Monday.

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). He concluded:

"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) conclusion.

—  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 (paragraph 99):

"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 impasse.

I look forward to hearing from you by return.

19 November 2001

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