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Animal Testing and Marketing Bans of the EU Cosmetics Legislation

Published online by Cambridge University Press:  20 January 2017

Kristian Fischer
Kristian Fischer*
Affiliation:
SZA Schilling, Zutt & Anschütz RechtsanwaltsAG, Law School of the University of Mannheim
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Extract

For many years, the EU's legislation on animal testing and marketing bans regarding cosmetic products and their ingredients has been giving rise to controversy. First, the bans were introduced under the regime of the Cosmetics Directive, which was subsequently replaced by Regulation (EC) No. 1223/2009 on cosmetic products (hereinafter “EU Cosmetics Regulation”). In this process, the animal testing and marketing bans of Article 4a of the Cosmetics Directive were transferred – with identical content and largely with the same wording – to Article 18 of the EU Cosmetics Regulation, so that the legal issues connected with the bans have basically remained the same. Since the transitional periods for the application of the bans ended on 11 March 2009 and 11 March 2013 (for details, see Article 18(2) of EU Cosmetics Regulation), and the bans as provided by Article 18(1) of the EU Cosmetics Regulation are binding and directly applicable in the EU Member States, they must be observed by the affected businesses as of now. Violations are to be sanctioned in the Member States in an effective, proportionate and dissuasive manner (Article 37 of EU Cosmetics Regulation).

Type
Articles
Information
European Journal of Risk Regulation , Volume 6 , Issue 4 , December 2015 , pp. 613 - 621
Copyright
Copyright © Cambridge University Press 2015

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References

1 Directive 2003/15/EC which amended Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products. On the bans under the Cosmetics Directive see Fischer, Tierversuchs- und Vermarktungsverbote nach der Kosmetikrichtlinie – Auslegungsprobleme und das Verhältnis zu REACH, StoffR 2007, 215 et seq., and Fischer, Testing Bans and Marketing Bans under the Cosmetics Directive – How to find a balance between the protection of animal welfare and the right to develop and market cosmetic ingredients, StoffR 2009, 40 et seq. and EFFL 2009, 172 et seq.

2 OJ 2009 L 342/59.

3 See Article 288(2) TFEU which describes the legal character of a EU Regulation.

4 COM (2013) 135 final.

5 ECHA, Factsheet, Interface between REACH and Cosmetics regulation, ECHA-14-FS-04-EN.

6 See (with sources from the case law of the CJEU) Borchardt, in: Lenz/Borchardt, EU-Verträge, 5th ed. 2010, Art. 19 EUV para. 14 et seq., Schwarze, in: Schwarze, EU-Kommentar, 3rd ed. 2012, Art. 19 EUV para. 36 et. seq. and Augsberg, in: Terhechte, Verwaltungsrecht der Europäischen Union, 2011, § 4 para. 4 et seq.

7 See Case 6/60, IMM [1960] ECR 1163, 1192 et seq.; Case 79/77 Firma Kühlhaus Zentrum [1978] ECR 611, 619; Case 151/73 Ireland/Council [1974] ECR 285, 296; Case 162/73 Dreher [1974] ECR 201, 213 et. seq.; Case 73/72 Bentzinger [1973] ECR 283, 288.

8 See, for example, case C-313/07, Kirtruna and Vigano [2008] ECR I-7907 para. 44.

9 Case 151/73 Ireland/Council [1974] ECR I-285 para. 16/17.

10 E.g. Case 22/70 Commission/Council [1971] ECR I-263, para. 15/19.

11 Case 374/87 Orkem/Commission [1989] ECR 3343 para. 28; Case 41/79 Testa [1980] ECR 1981 para. 21.

12 See Cases 46/87 and 227/88 Hoechst/Commission [1989] ECR 2859 para. 12.

13 Para 81, 86 of the Opinion.

14 COM (2000) 189 final, under 2.3.

15 Fischer, StoffR, 2009, 40 et seq.

16 Regarding the fact that those endowed with fundamental rights can also be legal entities and that not only companies headquartered inside the EU but also companies headquartered in third countries can be endowed with fundamental rights under Article 16 of the Charter: Jarass, Charta der Grundrechte der Europäischen Union, 2nd ed. 2013, Art. 16 para. 11 and Art. 51 para. 56 et seq.

17 Fischer, StoffR, 2009, 40, 43 seq.

18 Regarding the fundamental rights protection in the EU see e.g. Arndt/Fischer/Fetzer, Europarecht, 11th ed. 2014, para. 395 et seq.

19 See Case 331/88 Fedesa [1990] ECR I-4023, paragraph 13, which reflects the established case law of the CJEU.

20 Fischer, StoffR 2009, 40, 45 seq.

21 See, inter alia, Cases C-300/98 and C-392/98 Dior [2000] I-11344, para 43 et seq.

22 See, Case C-245/02 Anheuser Busch [2004] I-11018, para 42.

23 See Winter, in: Gesellschaft für Umweltrecht, Umweltrecht im Wandel, 2001, p. 88 that it is a fundamental approach within in World Trade Law that different ppm (production and processing methods) do not affect the likeness of products, because they have no influence on the product quality.

24 Therefore, Herrmann, Zeitschrift für Lebensmittelrecht 2003, 399, 411 seq. pleads for an infringement of WTO law.

25 See the explanation of the European Commission for the an amendment of the Cosmetics Directive in OJ EC 2000, C311 E/134 which reads under item 1.2.3: “Article III.4 of the General Agreement on Tariffs and Trade (GATT) says that imported products shall be treated no less favourably than like products of national origin. As the test method does not have any physical effect on the product, discrimination on this basis could be considered to be contradictory to WTO rules, in particular Article III.4 of the GATT. In this context it is doubtful whether Article XX of the GATT 1994 could provide sufficient justification for measures of this nature.”

26 Still in the amended proposal for a directive on cosmetic products (OJ EC 2002 C51 E/385) the Commission rejected a marketing ban: “It is not in conformity with WTO-rules and likely to be challenged.” The Commission held that a unilateral Community marketing ban would be contrary to the policy of a multilateral approach to animal welfare trade issues.

27 Case T-196/03 European Federation for Cosmetic Ingredients (EFfCI) v European Parliament and Council of the European Union [2004] II-4268, and the appeal decision in Case; C-113/05 P; case C-244/03 French Republic v European Parliament and Council of the European Union [2005] I-4059.