The story starts in 1976 when, with the aim of harmonising the cosmetics legislations of Member States, Europe adopted the Directive 76/768/CEE, more commonly known as the "Cosmetics Directive".

The first attempt to ban cosmetics testing

In 1993, seventeen years after the Cosmetics Directive was signed in to law, directive 93/35/CEE, (the 6th amendment of the Cosmetics Directive), introduced a ban on the marketing of cosmetic products containing ingredients, or combinations of ingredients, that had been tested on animals and was intended to come into force on January 1st 1998.

The 6th amendment also stated that a report on the development of alternative methods* should be returned annually, and that if there hadn't been sufficient development of replacements in time then the Commission would have the option to postpone the ban, as long as they propose any postponement before January 1st 1997.

The Commission's report for 1996 concluded that there was still no alternative methods* available to evaluate systemic risk (i.e. on the whole body) or to evaluate the risks concerning the interactions between ingredients. The Commission therefore proposed a postponement of the ban.

Against the will of the European Parliament, whose members strongly opposed the Commission's decision, the date of the ban was pushed back to June 30th 2000 with directive 97/18/CE, and then to June 30th 2002 with Directive 2000/41/CE.

Starting again from nothing

The 7th amendment to the Cosmetics Directive, 2003/15/CE, was written in 2000 and signed into law three years later in 2003. It replaced the modifications introduced by the failed 6th amendment, 93/35/CEE, but imposed the same reporting and postponement clauses as the 6th amendment.

The Commission, under pressure from the cosmetics industry, wished to modify the original ban so that the marketing of products tested on the animals would remain authorised in European territory. They cited World Trade Organization regulations which proscribe any discriminatory measurement between similar products as an excuse, and thus claimed that to discriminate between products tested on animals or not would constitute a breach of WTO rules.(proposal for a Directive of the 10/31/2000 paragraph 1.2.3).

Following exchanges between the Parliament, which was strongly in favour of the marketing ban, and the Commission, which is heavily influenced by the cosmetics industry, the agreement was that the 7th amendment would distinguish the subjects of testing and marketing of cosmetics into two distinct bans:

• A complete ban on the on the use of animals for testing cosmetic products and their ingredients on European territory, was to be imposed from March 11th 2009, (and is now  in force today).
• The marketing of products or cosmetic ingredients tested on animals was to be prohibited from March 11th 2009, (and is now in force today), except with regard to the tests involving repeated dose toxicity, (including chronic, sub-chronic and sub-acute exposure), toxicokinetics and reproductive toxicity for which the ban is due to become effective on March 11th 2013, (dependent on the Commission's decision).

However, a clause inserted into the text of the 7th amendment means that the Commission can propose to postpone the proposed bans up to 2 years before they are due to come into effect, if the development of substitute methods is considered to be insufficient. This means that the Commission has until March 11th 2011 to decide whether to implement the final ban imposed by the 7th amendment, to ban the marketing of all cosmetics that have been tested on animals, which is due to come into force on March 11th 2013.

The 7th amendment may have succeeded in banning the use of animals for cosmetics testing in Europe, but with the Commission now looking likely to propose a postponement of the final deadlines, it appears that it has also given the cosmetics industry another ten years to market products tested on animals in laboratories outside the European Union and even then it still doesn't guarantee a total ban on the marketing of these products in the future!

End of the directive

The Current Cosmetics Directive, 76/768/CEE, will be replaced on July 11th 2013 by regulation 1223/2009, relating to the cosmetic products. The text of this new regulation contains Article 4 of Chapter 5, which relates, without notable change, to animal experimentation. Curiously, whereas this text comes into effect in July 2013, it still mentions the bans intended to come into force in March 2013.

If the final ban was not intended to be postponed then a simple sentence prohibiting the marketing of products tested on animals would be enough. However, the text for this new regulation seems to have been written with the intention to postpone the ban, and to avoid complicated rewriting, a simple modification of the date is enough to postpone the marketing ban in the text for the new regulation.

Towards a new postponement?

The arguments which the European Parliament made in a resolution objecting to the original postponement in 1997 remain valid today. A ban on the marketing of products tested on the animals would push the development and validation of substitute methods and that in the interim the industry has at least 8000 ingredients authorised for the use in development of new products. It should also be remembered that the substitute methods being developed require validation, whereas the experiments on animals they're intended to replace have never undergone such analysis.

Let us also not forget that the subject for debate here is the development of new cosmetic products. The use of the animal experimentation, which is already questionable, is completely unacceptable when it is a question of torturing animals to develop vanity products. Whilst it's true that the cosmetics industry directed a lot of money and effort to the development of substitute methods, in real terms their investment was utterly insignificant considering the size of the industry.

The current situation with the Cosmetics Directive is that the ban which was originally intended to come into force in 1998 has not ceased being deferred, and this situation can continue indefinitely. The last annual report on the development of substitute methods concludes that the situation with regard to the expiry of 2013 is critical.

The Commission has until March 11th 2011 to decide whether to defer the ban or not, by modifying directive 76/768/CEE and regulation 1223/2009. However, should they choose to do this it would be despite the opinion of the people and their representatives in the Parliament and only in the interests of the Commissioners friends in the cosmetics industry.

*: Until 2003 the the word "alternative" is used to described methods to replace animals whereas the term "substitute", a more suitable term, is used in Directives written after 2003.