Select Committee on European Scrutiny Sixteenth Report


Letter from the British Union for the Abolition of Vivisection to members of the European Parliament

Cosmetics directive — Ministers adopt 'no change' policy contrary to wishes of Parliament and the public

We are writing to express our profound disappointment following the decision of the Council of Ministers on 26 November relating to animal testing for cosmetics.

You will be aware that the Council voted to adopt as its common position a proposal put forward by the Belgian presidency for amendment of the Cosmetics Directive (Directive 76/768). The proposal just secured a qualified majority. Its key points are:

—  a marketing (sale) ban on cosmetics products or ingredients tested on animals in the future where there are validated alternative methods accepted by the OECD

—  an unconditional ban on the testing on animals of finished cosmetic products (we understand that very little such testing in fact takes place)

—  a ban on the testing on animals of cosmetics ingredients where relevant alternative methods are included in EU legislation.

The common position therefore rejected the amendments to the original Commission proposal passed overwhelmingly by the Parliament in April. The key amendments passed by the Parliament were:

—  an unconditional ban on the marketing of cosmetic products and ingredients tested on animals in the future, immediately where there are validated non-animal alternatives and after a limited period even where there are no such alternatives.

—  an unconditional ban on the testing of cosmetics on animals, immediately in the case of products and from January 2005 in the case of ingredients

As you know, they key issue is whether a marketing ban would be compatible with the WTO. The Parliament's view, be believe quite rightly, is that WTO fears have been greatly exaggerated but that, if a challenge is brought, the EU should have the political will to contest it. We would stress that:

—  a recent legal opinion by Phillipe Sands, a highly respected international lawyer, concluded:

"... 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".

That is precisely what we, and the Parliament, have been arguing for some time. Mr Sands is Global Professor of Law at New York University and Professor of International Law at the University of London. Recent WTO caselaw supports the Parliament's approach.

—  In any event, the common position itself includes a marketing ban, albeit a qualified one. It is therefore clear that all Member States — those who voted for the proposal and those who did not — now accept that a marketing ban for animal welfare reasons can be WTO-compliant. In many cases, this represents a significant change of thinking. If one form of marketing ban is WTO-compliant, there is no reason why another cannot also be, provided that it is put forward for legitimate, non-protectionist reasons (no one suggests that the Parliament's unconditional marketing ban was put forward for this reason).

Importantly, the US accepts that animal welfare is a legitimate WTO consideration (including in terms of public morality). It acknowledged this in the legislation it passed last year banning the import and sale of dog and cat fur.

It is important to appreciate that the common position provides, in one important respect, even less protection for laboratory animals than did the original Commission proposal. That proposal included an eventual unqualified ban on the testing of cosmetic ingredients on animals. The common position, as we have explained, proposes only a ban conditional on alternatives being validated and officially accepted. In fact, this is a meaningless provision, because EC Directive 86/609 — the principal legislation dealing with animal experiments — already bans all animal testing where there is an alternative.

In addition, a marketing ban which is conditional on the validation of alternatives by the OECD — as proposed by the common position — simply reflects what should already happen. The OECD strongly deprecates animal testing where there are alternatives; OECD members should not be producing, or therefore selling, cosmetics developed with redundant animal testing.

The Common position therefore represents a cruel deception on the European public. It claims to advance the protection for laboratory animals but in fact does nothing of the sort. It concedes the principle that animal welfare is a legitimate WTO consideration, but shies away from utilising this in a meaningful way. The Council of Ministers has ignored the clear wishes of both EU citizens and the Parliament, the only democratically elected EU institution.

We strongly urge the Parliament to maintain its position of principle, and in the process continue to reflect the overwhelming wishes of EU citizens. It is, we believe, essential that the EU demonstrates that free trade can co-exist harmoniously with other legitimate concerns — not simply animal welfare but also the environment, child labour and so forth. Otherwise, public confidence in the WTO, already at a low ebb, will diminish yet further. Unlike the Parliament, the Council of Ministers is reflecting a very narrow strand of opinion.

We very much hope that we can rely on your support when the issue returns to Parliament. If you have any queries, please let us know.

30 November 2001

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