The Open Jar: What a European Law Put on the Label

The animal-testing bans took the headlines. Directive 2003/15/EC, adopted in Brussels on 27 February 2003, set deadlines for ending the testing of cosmetics on animals in the European Union and for keeping animal-tested products off its shelves.^[1]

The same text did something smaller that a customer could see. It asked for a little drawing of an open jar, followed by a number of months, on any product that would keep for more than thirty: the period after opening in which it could safely be used.^[1] This is the story of what the law of 2003 put on the label, and of what it asked of the laboratory behind it.

The directive amended Council Directive 76/768/EEC, the Community’s cosmetics law, for the seventh time. Its text had been agreed between the European Parliament and the Council in a conciliation committee on 3 December 2002, and it was published in the Official Journal on 11 March 2003, taking effect that day.^[2][3]

Its reasons were set out at the start. The Treaty of Amsterdam had annexed a protocol requiring the Community to pay full regard to the welfare of animals. The amendment of 1993 had made provision for alternative methods that used no animals at all, but, the new text observed, it took no account of methods that reduced the number of animals used or the suffering caused.^[2] The marketing ban written in 1993 was to be superseded, and in the interests of legal certainty the provision was deleted with effect from 1 July 2002.^[2]

The text worked by deadlines. Member States were to prohibit testing finished cosmetic products on animals. The Commission was to publish, by 11 September 2004, timetables for ending the testing of ingredients and the marketing of tested products, each within six years of the directive’s entry into force — or ten for repeated-dose toxicity, reproductive toxicity and toxicokinetics, the tests for which there were, in the directive’s words, “no alternatives yet under consideration”.^[4]

The Commission later summarised the result. The testing ban on finished products has applied since 11 September 2004; the testing ban on ingredients, and the marketing ban for most effects on health, since 11 March 2009; and the marketing ban for those three hardest tests since 11 March 2013, whether or not alternatives existed.^[5]

The provisions a customer could see were about the label. A product that kept for thirty months or less was to carry the words “best used before the end of” and a date. One that kept for longer was spared the date, but had to show the period after opening by a symbol — the open jar, which the Commission was to fix by 11 September 2003 — followed by a number of months or years.^[6]

The ingredients list grew too. Twenty-six fragrance substances, from amyl cinnamal to treemoss extract, were to be named whenever they exceeded 0.001 per cent of a product left on the skin or 0.01 per cent of one rinsed off, because, the directive said, they had been identified as “an important cause of contact-allergy reactions in fragrance-sensitive consumers.” From 11 March 2005 manufacturers and importers were not to place on the market products that failed the new rules on the period after opening and the listed substances.^[6]

The directive also settled when a maker could claim that its product had not been tested on animals. It could say so on the packaging “only if the manufacturer and his suppliers have not carried out or commissioned any animal tests on the finished product, or its prototype, or any of the ingredients contained in it, or used any ingredients that have been tested on animals by others for the purpose of developing new cosmetic products.”^[8] The Commission was to issue guidelines so that such claims did not mislead, taking account of the small firms which, the directive noted, made up the majority of the “non-animal testing” producers.^[8]

Behind the label, the file each manufacturer kept for inspectors now had to record any animal testing by the manufacturer, its agents or its suppliers, including tests carried out to meet the rules of countries outside the Community, and parts of that file were to be made easily accessible to the public. Substances classified as carcinogenic, mutagenic or toxic for reproduction were prohibited; one in the lowest of the three categories could be used only if the Community’s scientific committee had evaluated it and found it acceptable.^[8]

Not every government accepted the bans. France applied to the European Court of Justice to annul the testing and marketing prohibitions, arguing that they infringed the principle of legal certainty, and the Eurogroup for Animal Welfare declared itself “appalled”.^[9][10]

The case turned on what France had left out. It asked for the new prohibitions to be annulled, but not the provision that deleted the old ban, and the Court held that the two could not be separated: annulling one while leaving the other intact “would substantively alter the provisions relating to testing on animals for the purpose of developing cosmetic products.” It declared the action inadmissible, and the deadlines stood.^[10]

The directive required a number of months beside the open jar. It did not say how that number was to be found, and the sources used here do not record how manufacturers arrived at it.^[11]

Nor do they say how many animals the bans spared, or how companies tested products for markets outside Europe once testing inside it had closed. Even the summaries of the deadlines read differently: the Commission’s research news service described in 2005 “a complete ban on all testing for cosmetics in the EU from 2009,” while the Commission’s own later account gives 2013 for the last marketing deadline.^[12][13] Both are right about different things — testing and selling — which is exactly how the two come to be confused.