WEDNESDAY 9 JANUARY 2002
Mr Jimmy Hood, in the Chair
MISS MELANIE JOHNSON, a Member of the House, Parliamentary Under-Secretary of State for Competition, Consumers and Markets, MS PATIENCE WILSON, Director, Consumer Strategy, and MS ELAINE DRAGE, Director, Trade Policy 2, Department of Trade and Industry, examined.
(Miss Johnson) I will leave them to introduce themselves perhaps, and a happy New Year to you and indeed to Committee Members. Thank you.
(Ms Wilson) My name is Patience Wilson and I am the Director of Consumer Strategy in the Department of Trade and Industry.
(Ms Drage) My name is Elaine Drage and I am one of the Directors of Trade Policy for the Department of Trade and Industry.
(Miss Johnson) Well, I think, if I may, I have got a prepared statement and it might be helpful if, in response to your first question because it is principally a response to that question, I do actually read the opening statement, which is only short, I can assure you, so it will not take up very much time. I would like to thank the Committee for their continuing interest in the Cosmetics Directive. I do regret, and I only emphasise this, that you did not appear to have received the Secretary of State's letter of the 22nd November explaining why she felt it was necessary to lift the scrutiny reserve on the Seventh Amendment at the Internal Market Council on the 26th November of last year. As the Secretary of State explained subsequently, she had written to both you, your Committee, and the Lords Committee as well, but for some reason or another your Committee did not receive the letter and I can only apologise for that, but it is a particular difficulty. I must stress that my Department has gone out of its way to keep the Committee informed. Indeed we submitted an EM on the 11th May 2000 which was cleared by your Committee and, further, my colleague Dr Howells, in his role as Consumer Affairs Minister, wrote to this Committee on the 27th July 2000. Indeed I submitted a further EM on the 14th November of 2001. The Government lifted the UK scrutiny reserve because a negative vote by the UK would have created a blocking minority, to answer your question directly. This would have caused the text produced by the Belgian Presidency to fail. We support the text. It represented and does represent a significant step forward in promoting animal welfare. It will lead to both a ban on the testing of cosmetics on animals throughout the EU and a marketing ban on linked internationally validated and published alternative tests which demonstrably protect human health. The text was given political agreement at the IMC, as you are aware now, on the 25th November. It will enshrine for the first time indeed the principle of a marketing ban in the EU law. Equally, it will maintain the current high levels of protection for human health and safety and we believe it will also push forward more rapidly the development of alternatives to animal tests. The European Cosmetics Trade Association, COLEPA(?), issued a press notice in early December 2001 stressing their support for the Belgian Presidency text which was saying that it was a realistic approach and it would progress animal welfare. It is essential that the Seventh Amendment is agreed by the 30th June 2002 so that it will replace the unimplemented Sixth Amendment to the Cosmetics Directive, as I am sure you are aware. We believe that the Committee accepted after our letter of 27th July 2000 that the Sixth Amendment is incompatible with our international trade commitments. Without political agreement of a November Council, it would have been several months before a further step in the lengthy EU process could have been made, and I can talk more about the timetable, but the timetable is quite important. This is not the end of the process and I would like to emphasise that fact to yourself and to the Committee. The next step is for the European Parliament to discuss and offer amendment on the revised text. I would just like to reiterate the Government's commitment to promoting animal welfare. The UK has had a ban on cosmetics testing on animals since 1998 and we are working hard in trying actually to extend this animal testing ban across the EU and ultimately more widely when validated alternative safety tests are in place.
(Miss Johnson) I think it has been a difficult subject. The Belgian Presidency worked very hard in their negotiations to try and reach some agreed compromise which was making sufficient progress for any of us to be able to support it. There were some surprises. Denmark and Austria voted against the proposal, as you are aware, but there were surprises, for example, in that France voted for and previously had voted against the thing. It is a volatile situation I think and one in which it was never very clear, and not probably until you get to the Councils on some of these very difficult topics, despite a lot of work that was put in by the Belgian Presidency in trying to arrive at some agreed and positive proposal, what exactly the outcome of the Council would be on the 26th November.
(Miss Johnson) I think it is the case with all these things, and I have been to a number of Councils in my previous role as well as presently in this one, it is always the case that there is a need to achieve difficult agreements at Council meetings and, therefore, it is always uncertain what some Member States will do because the individual difficulties for some Member States are not always foreseeable in detail until you get to the final text and the final discussion at a Council meeting.
(Miss Johnson) Our view is that the timetable does not permit it and I think if we consider what the timetable is, and I would like to emphasise again the fact that there is still scope for this Committee indeed to have further discussion on this because it is very hard and it has got a lot of the process to go through still, it has only yet been at a First Reading stage and the First Reading with the political agreement on the common position in November, we have still got to get to the Second Reading position. If we do not get to the position of adopting the Seventh Amendment by the 30th June now of this year, which is quite close now in terms of the European parliamentary processes, and I do expect that there will be controversy, there is bound to be controversy around a subject like this when it is discussed by the European Parliament, then we will not end up with an alternative to the Sixth Amendment and all the problems that I mentioned before with the Sixth Amendment. I think that the timescale at the moment is that we may get a Second Reading indicative by the Parliament around February and a possible agreement at the IMC indicative around March possibly and then there will need to be conciliation and Third Reading, so the process is actually very tight on the timescale. The next proper IMC is scheduled for March, so had we missed the November meeting, we would not have been able to re-inject this back into the process until March and we would have been too far down the line to hit the 30th June deadline.
(Miss Johnson) We have indications both from the Commission's lawyers, from indications we have received from the US Administration and from our own legal advice that this Amendment, if it were introduced and implemented, would be in contravention or would be likely to be in contravention of WTO Rules and that is the legal advice that I am given on this subject and it is legal advice that comes from a number of quarters.
(Miss Johnson) As I have said, the balance of legal advice that we had and our understanding of the EU Commission lawyers' advice as well and the indications from the US are all that on the banner of legal advice an outright ban would be seen as protectionist and we would lose the case. That is the advice that we have received and I think you have to weigh that up in the balance of everything that is being considered here. I would not wish to impugn the reputation of any single lawyer, least of all protected by the powers that this House has, but the fact is that you can clearly get different legal opinions depending on who you ask on different things and given certain premises and I think the advice was given on a certain premise. The fact is that if we got into a position where this was a matter of dispute, we would lose the progress that we are making at the moment and enter probably a three or four-year period of considerable legal uncertainty under which no progress could be made on this topic at all. We are very keen to see progress made. We think it has been made on a realistic and practical basis and indeed we are making considerable progress here because we are not only extending the testing ban which we already have in the UK EU-wide, but we are also introducing by practical degrees a marketing ban which at the moment will be the first time that that principle has been established in the EU context, so it is a substantial step forward. If we risk the process stalling through legal uncertainty, then all of that could be jeopardised very seriously.
(Miss Johnson) We are making those advances and in fact we are leading in making those advances and we do not need to lose sight of the fact that we are making those advances here in the UK and we are leading the EU to make such advances as well, so I think we are entirely driving in the right direction as fast as we possibly can and the question is how fast can we drive there and how much can you practically achieve. However, the question of the legal position is that nobody is challenging at the moment because at the moment they see what is happening on the Directive and the fact is that if we went through the lengthy process of putting in place a Directive which was challengeable, then we cannot undo that easily. I do not need to explain to yourself or other Members of this Committee that the fact is that the process of making European law is a fairly cumbersome one when it comes to this kind of thing and once you have put the legislation in place, undoing it is a several-year process in itself or at least a couple-of-years' process in itself and what we have here is something that guarantees the progress that we are making as against the risk of considerable uncertainty with legal challenge and stalling of the process and jeopardising what we at the moment want to seek to achieve and seek to achieve more and greater than others that we are trying to lead behind us.
(Miss Johnson) We have taken a very well considered, I believe, judgment about this. These judgments are always difficult to call, but in fact I do not think this one was that difficult to call because I think the risks of doing something different are very substantial and the gains here are clear to be seen and we can build on them further. The fact is that if we had gone for something where it was open to challenge in the way you are suggesting and gone down the path of allowing the challenge to happen, then we would fall foul of the risk of stalling the process and all our legal advice points to the fact that we would be challenged and the EU would be challenged and it would cause the difficulty that I have outlined to the progress that we really want to see on this and I have to say I particularly want to see this progress made.
(Miss Johnson) The US is indicating that a challenge would be forthcoming. I think perhaps one of the issues to be considered here is that obviously although this is a very significant and important area in its own right, there are questions about whether there are issues that go beyond this, whether there are principles here which might apply in other areas, and clearly any issue in the WTO context where protectionism arises is seen by those who may see themselves as the victims of protectionism to challenge that very strongly and we would clearly do likewise were the situation differently placed.
(Miss Johnson) The legal advice we have is that it would not be a good case to go on and we would be likely to lose that case. I have to take the legal advice amongst other things because otherwise I would be appearing in front of this Committee explaining why it is that we have ended up in a complicated legal case on the losing end and why we did not take advice. It is very difficult in the case of legal advice other than to take the best advice that is coming from many quarters, as I said, in that it is coming from the Commission as well as from our own lawyers.
(Miss Johnson) I hinted as much myself, but I did not put it quite as boldly.
(Miss Johnson) I think in response to that point I would just like to emphasise the fact that a significant, indeed probably a majority of other Member States are very concerned with progressing the Sixth Amendment. It is not only ourselves by any means, but really I believe it is Denmark and Austria who are the only two Member States who would be happy to progress with the Sixth Amendment basically, so we are talking about a substantial body of EU opinion as well as the Commission's own view about this in which we stand with the body of that view, that there is danger in moving ahead with the Sixth Amendment. I think it is highly desirable to get to a proper full marketing ban. I have to say that to you. That is the position we are trying to arrive at and I would like to reassure the Committee that that is where we are trying to go, but it does have to be practical, there to have to be practical steps to achieving that and we do have to work within the international framework in order to achieve it as well as meet EU requirements en route. We have made steps forward and I do think that we are achieving a considerable gain here. There are still gains to be had and we continue to work to achieve those.
Miss McIntosh: May I declare an interest in that I worked in two separate law firms on European Community law. The Minister made the statement ----
Chairman: Along with a few more lawyers!
(Miss Johnson) The Sixth Amendment will not be adopted if the Seventh is obviously, so it is an ideal situation and the position with the alternatives that are being adopted is that there is currently a dossier of tests available and basically they are ways of sifting through to see whether something is safe enough to be further tested in a sense because what you have is a number of sifts which allow you to decide things by "does it cause severe irritation to the eyes?", for example. If it does cause severe irritation to the eyes, it never gets tested on anything further anyway. There are sifts coming through. There are currently three or four agreed tests further to this that the OECD has validated. The pressure I think now has to be to have a realistic timescale under which we try to achieve a greater number of these tests so that more and more things can be put through internationally validated tests which we know will not fall foul of the WTO Rules. I think the important difference here and the reason why we have gone for the international and OECD aspect of it and the reason why the Belgian Presidency negotiated this was to have something which was firstly scientifically provable, which is very important in this context, so that it cannot be alleged that it is a matter of either an individual Member State's or an individual country's views about this, and secondly internationally recognised standards because that provides the validation which will be accepted in the international context for the further marketing ban and the ban on testing, so we are making progress on that and I would like to see a realistic timetable for the OECD to progress that further.
(Miss Johnson) Yes, it is one and I will give you a shorthand answer on this at least. Yes, it is one of the difficulties certainly and if we had a whole plethora of readily agreed international tests, there would be no problem in moving immediately. The whole problem is about the practicalities of doing it and that is why I say we need a realistic timetable. I do not think we need to be over-generous about that timetable, we need to set a tough timetable if we can, but it needs to be realistic bearing in mind that these tests have got to be produced that require standards because clearly if they do not go through the sort of processes I have been talking about scientifically and become accepted internationally through the OECD publication of them, then there will not be agreement of the kind that we need to make this further advance.
(Miss Johnson) By the OECD there is, but I am not sure if there is one test centre.
(Ms Wilson) No. There is the Scientific Committee on Cosmetics and Non-Food Products, but it is the OECD who will actually do the international validation and they will use the major testings that they themselves have approved.
(Miss Johnson) No, it is an improvement because we have actually got the testing ban EU-wide and we have got the starting of the marketing ban. What we need to do is we need to make more progress on the marketing ban, I agree with you entirely on that, but we have got the wherewithal and this is the first time that there is an EU acceptance of the principle, or will be if we get it agreed finally through the process, that there is an acceptance of the principle of a marketing ban. That will be in itself a major step forward. What we then need to do is to make sure that all parties are working hard and that there is a realistic timetable behind this that will deliver the OECD validated tests which will provide the full range of alternatives we have got. We have got a limited range of alternatives and a lot of sifts at the moment. We are talking about new products anyway, we are not talking about anything that is there at the moment. We are only talking, as you know, about anything that comes up for the first time, some new chemical, some new product, but we are talking about making sure that those are available for testing via alternative means and that is what we have got to achieve and focus on.
(Ms Wilson) Yes.
(Miss Johnson) I think this is done by the scientific processes rather than through political debate.
(Miss Johnson) Well, nothing is in a vacuum, but the fact is that I think there is a distinct difference between the kinds of things we are talking about. This is actually something that is going to be agreed on a scientific basis and they have agreed, so clearly it is possibly to achieve agreement and what we need to do is achieve more agreements.
(Ms Drage) My understanding, Mr Cunningham, is that the OECD have validated the test against cancer for the ingredients of potential cosmetic products and that two or three more are in the pipeline, going through a rigorous scientific test to ensure that all countries who are members of the OECD can accept these because clearly they all want to ensure the health and safety of any of the ingredients that go into babycare products, shampoos, soaps, all the things that count as cosmetics.
(Miss Johnson) We would be happy to drop the Committee a line.
(Miss Johnson) No, there are some and progress is being made.
(Miss Johnson) No, it does not because it is, as I have said, actually about what is practically achievable and what we believe is legally sustainable and those two points are not trivial points. They are actually points which will either allow us to make progress or hinder our progress. Now, if we had gone down the path of continuing to support the Sixth Amendment, we would have lost both any legal certainty and probably would have hit legal challenge. The legal uncertainty would have undone the whole process for however long the legal process takes, but the estimates I have received are three or four years of considerable uncertainty while the whole process stalls. As it is, we are hopefully, if we get agreement and it will obviously be the subject of considerable further European discussion, both EU and Parliament discussion, to make sure that we do actually achieve progress on this and we do therefore end up with alternatives which are being developed according to a realistic timescale and we therefore make considerable progress of the kind that has not been made in the EU before. The Sixth Amendment of course has never been implemented and I can only re-emphasise that. I think I made that point before, that they are alternatives. There has been no implementation up until now and indeed there will be no implementation unless we sort this out over the next six months and that leads me back to the point about why it was unfortunately necessary to lift the scrutiny reserve and to make progress at the time at which we did, even though I recognise it has caused some problems for you.
(Miss Johnson) Thank you.