On the 18 August 2020, the ECHA board of appeal made a decision regarding vertebrate testing which will undoubtedly change the face of the European cosmetics market significantly.
Two decisions were made at the appeal level for substances used exclusively as ingredients for cosmetic products.
The registrants appealed against new vertebrate animal testing on the grounds that the substances had only cosmetic use, and that the Cosmetics Regulation has an effective ban on vertebrate testing for cosmetic products and ingredients. ECHA disagreed and the appeal board found that the REACH regulation does not contain an automatic exemption from the information requirements for registration if a substance is used as an ingredient in cosmetic products. ECHA found that the Cosmetics Regulation restriction on vertebrate testing does not prevent vertebrate testing to be carried out for the purpose of REACH compliance.
Andrew Fasey, Technically Qualified Member of the Board of Appeal and rapporteur for the cases, says: “The two decisions published today are among the most important taken by the Board of Appeal to date. The relationship between the information requirements in REACH and the marketing and testing ‘bans’ in the Cosmetics Regulation have been an issue for many years with several different interpretations. The two decisions adopted today are based on a rigorous analysis of the wording and objectives of the two pieces of legislation. I don’t expect that everyone will agree entirely with these decisions. We have however tried to set out as clearly as possible how and why we have arrived at our conclusions.”
The full text can be found here:
This decision has deep implications for the cosmetics industry accessing the European market for substances within the scope of the REACH Regulations. How many cosmetics will truly be able to claim that they are cruelty-free, vegetarian, vegan or Halal going into the future? Furthermore, the testing itself, if commissioned, may be difficult or even impossible to undertake in Europe. Following the vertebrate testing ban for cosmetics, many member state’s animal testing legislation banned vertebrate testing for cosmetics and their ingredients in Europe. This is legislation which will not be undone easily or swiftly. The welfare standards of Europe are reportedly far higher than in some other global jurisdictions but the well-established restrictions on testing cosmetics on vertebrates will bar many high-standard European laboratories from accepting these studies, unless Member State and European animal testing legislation is undone quickly.
At the European level, we’re preoccupied with the UK’s exit from the EU and we are dealing, like the rest of the world, with a global pandemic. It’s unlikely that a legal shift allowing animal testing on cosmetic ingredients in Europe will be effected anytime soon, not least because the general public has not just little appetite for it, but actual distaste.
In the absence of a decision reversal by ECHA, any cosmetic in Europe now has a much greater likelihood of having been tested on vertebrate animals recently. Furthermore, the likelihood that the testing was undertaken outside Europe, where welfare standards are much lower, has greatly increased.
In the bid to improve worker welfare and environmental protection, ECHA have managed to undo a fundamental, citizen-driven cornerstone of the cosmetics industry. It is to be hoped that the future face of the cosmetics industry, and ECHA, recognise the public will to reduce testing on animals and that funding, time and effort are invested into the development of alternatives to animal testing.
First published 9 sept 2020