The Ban With a Date: Europe and Animal Testing, 1993

Most laws ban a thing. This one banned it from a date, and wrote into the same provision the conditions under which the date could move.^[1]

On 14 June 1993 the Council of the European Communities amended, for the sixth time, Directive 76/768/EEC, the Community’s law on cosmetic products. Among a long list of changes — a new definition of a cosmetic product, a safety file for every product, an ingredient list on every box — was a single provision about animals.^[1]

The amendment added to the directive a provision on “ingredients or combinations of ingredients tested on animals after 1 January 1998 in order to meet the requirements of this Directive.” Its recitals put the purpose plainly: testing on animals of ingredients or combinations of ingredients “should be banned as from 1 January 1998”.^[2]

A Commission directive of 1997 spelled out what the provision asked of governments: that Member States “must ban the placing on the market of cosmetic products” containing such ingredients.^[3] It worked, in other words, through the shop rather than the laboratory, and the Commission’s own later history of the ban describes the text of 1993 as the first European provision on a marketing ban of cosmetics tested on animals.^[4]

The same provision said what was to happen if science had not kept up. If there had been “insufficient progress in developing satisfactory methods to replace animal testing” — in particular where alternative methods had not been scientifically validated as offering the consumer an equivalent level of protection, taking account of the OECD’s toxicity test guidelines — the Commission was to submit, by 1 January 1997, draft measures to postpone the date “for a sufficient period, and in any case for no less than two years”.^[5]

It was also to report every year to the European Parliament and the Council on progress in developing, validating and gaining legal acceptance for alternatives, and the reports were to contain “precise data on the number and type of experiments relating to cosmetic products carried out on animals”, which the Member States were obliged to collect.^[5]

The animal provision was not the only change a shopper would notice. The same directive required the packaging to state the function of the product, unless that was clear from its presentation, and to carry “a list of ingredients in descending order of weight at the time they are added”, preceded by the word “ingredients”. Colours could be listed in any order after the rest, and a range sold in several shades could list every colouring agent used across it, provided the words “may contain” were added.^[7]

It anticipated a new kind of claim, too. Any reference to testing on animals “must state clearly whether the tests carried out involved the finished product and/or its ingredients.” Manufacturers had to keep a file for the authorities with each product’s composition and an assessment of its safety for human health, and from 1 January 1997 products that did not comply were not to be placed on the market.^[7]

By the spring of 1997 the answer was plain. On 17 April the Commission recorded that research had progressed, in particular on percutaneous absorption and on local risks to the eyes and skin, but that no alternative method had yet been scientifically validated and the OECD had adopted no guidelines for alternative toxicity tests. It judged the state of the art unlikely to change before 1 January 1998, and replaced that date with 30 June 2000.^[8]

It went further than a postponement. Unable to foresee when particular alternatives would be validated, the Commission conceded that it was “not in a position to exercise its powers” under the provision “except in part”, and undertook to submit new draft measures by 1 January 2000 if progress was still insufficient.^[8] Its own later history sums the moment up in a line: the deadline postponed until 2000, for lack of alternatives to animal testing.^[9]

The provision of 1993 was in the end rewritten rather than enforced. A new directive of 2003 brought in four bans: on testing finished products and ingredients on animals, and on marketing finished products and ingredients that had been so tested.^[10] The testing ban on finished cosmetic products has applied since 11 September 2004 and on ingredients since 11 March 2009; the marketing ban applied from 11 March 2009 for most effects on human health and, for the three most complex — repeated-dose toxicity, reproductive toxicity and toxicokinetics — from 11 March 2013, whether or not alternative tests existed.^[11] The same provisions now sit in the cosmetics regulation, which replaced the directive in July 2013.^[11][12]

Twenty years separate the directive from the day the marketing ban was complete. The idea of 1993, a ban fixed to a date, survived. The escape clause did not.

The directive was written in a decade when some of the people selling makeup made animals part of their public account of themselves. Urban Decay’s website in 1999 described its founder as “a huge contributor to animal rights causes”,^[13] and the second face of M·A·C’s Viva Glam lipstick, in 1997, was the singer k.d. lang, whom the historian of that campaign describes as an animal rights activist.^[14]

Neither company’s account says anything about the directive, and this one does not connect them. They show only that the question the law took up was also being asked at the counter.

The directive’s own reports would answer the obvious questions — how many animals were used to test cosmetics in the Community, and how the number changed through the decade — and the text of 1993 required the Commission to publish them every year.^[15] Those reports have not been read for this account, and it gives no figures.

Nor does it say how far the date of 1998 changed what companies did before it was moved. The sources here are the legal texts and the Commission’s own summaries of them. They record what the law required and when, not what laboratories did in response, and a summary written by the institution that administered a ban is not an independent assessment of it.^[16][17]