Luxembourg: Cosmetics tested on animals outside the EU may still be prohibited

The European Federation for Cosmetic Ingredients (EFfCI) is a trade association representing the manufacturers within the EU of ingredients for use in cosmetic products. Three of its members conducted animal testing outside the EU in order that the cosmetic products containing certain ingredients could be sold in China and Japan.

The EFfCI brought an action before the British courts to establish whether the three companies concerned would incur criminal penalties if they were to place on the British market cosmetic products containing ingredients that have been tested on animals.

The regulation on cosmetic products prohibits the marketing of products containing ingredients which have been tested on animals in order to meet the requirements of that regulation. One of those requirements is that the cosmetic product is safe for human health, that safety having to be assessed on the basis of the relevant information and be the subject of a report included in the product information file.

The EFfCI claimed that the regulation is not infringed if the animal testing has been conducted in order to comply with the laws of third countries. Hearing that dispute, the English High Court questioned the Court of Justice on that subject.

In its judgment, the court examined whether the words “in order to meet the requirements of … the Regulation” may cover such animal testing as that conducted in the present case.

Taking into account the context and objects pursued by the regulation, the court considered that the objective of the regulation is to establish the conditions for access to the EU market for cosmetic products and to ensure a high level of protection of human health, whilst also ensuring the wellbeing of animals by prohibiting animal testing. Access to the EU market is conditional upon compliance with the prohibition of animal testing.

In that regard, the court stated that only the results of animal testing relied on in the cosmetic product safety report may be considered to concern testing conducted in order to meet the requirements of the regulation. It is irrelevant in that regard that the animal testing was required in order to market the product in third countries.

The court stated next that EU law makes no distinction depending on where the animal testing was carried out. The regulation seeks to promote the use of non-animal alternative methods to ensure the safety of cosmetic products. The attainment of that objective would be seriously compromised if the prohibitions laid down in EU law could be circumvented by carrying out the animal testing in third countries.

The court concluded that the placing on the EU market of cosmetic products containing some ingredients that have been tested on animals outside the EU in order to market those products in third countries may be prohibited if the data resulting from that testing is used to prove the safety of the products concerned for the purposes of placing them on the EU market.