'NOT TESTED ON ANIMALS': THE FUTURE OF COSMETIC ANIMAL TESTING IN THE U.S. AND BEYOND.

• Author: Innis, Jane K.

1. INTRODUCTION

   In the United States' cosmetic industry, it is common practice to assess the safety of cosmetic products and their ingredients by testing them on animals prior to their distribution to be sold for human use. (1) The term "cosmetics" includes any items intended to be applied to the body for the purpose of "cleansing, beautifying ... or altering [one's] appearance...." (2) The most frequently used animals in the cosmetic industry include rabbits, guinea pigs, mice, and rats. (3) The most common tests conducted on animals include the application of chemicals onto the shaved skin or into the eyes of restrained animals without pain relief, the repeated force-feeding of the animals to identify signs of potential health hazards such as cancer, and "lethal dose" tests where animals are force fed "large amounts of ... test chemical[s] to determine the dose that causes death." (4) After completion of these tests, animals are killed without pain relief, "normally by asphyxiation, neck-breaking, or decapitation." (5)

   Federally, the U.S. remains mostly silent with respect to animal testing regulations in the cosmetic industry. (6) The U.S. Food & Drug Administration's ("FDA") Federal Food, Drug, and Cosmetic Act ("FD&C Act") is the primary legislation in place for regulating consumer protection guidelines for food, drugs, and cosmetics. (7) While the FD&C Act does not explicitly require the use of animal tests to determine a product's safety, it also fails to provide any regulations regarding cosmetic animal testing at all. (8) Rather, the FD&C Act opens the door for cosmetic manufacturers to assess the safety of their products through any method those companies deem reasonable, including testing their products and ingredients on animals. (9)

   While U.S. federal law provides inadequate cosmetic animal testing regulations, "[t]he fight to ban animal testing recently scored a major victory" as California became the first state to ban the sale of any cosmetic product tested on an animal. (10) Beginning in January 2020, California's new bill will essentially prohibit the marketing of any cosmetic product that was tested on an animal. (11) This Note seeks to provide insight into the future of cosmetic animal testing based on implemented regulations and recently introduced policies in the United States and beyond. (12)

2. HISTORY

   Historically, animals have been denied rights based on the belief that their inability to communicate suggests that they lack reason and consciousness. (13) Animals were believed to be inanimate objects and therefore unable to suffer. (14) In the United States, that belief lead to the "widespread acceptance" of animal testing "in the 1930s after ... unsafe [cosmetic] products resulted in ... great harm [to humans]." (15) Federal regulations were adopted to require "companies to prove their products' safety ... before offering them for sale to the public." (16) Currently, cosmetic manufacturers and production companies in the United States are permitted to decide which method will be used to prove their products' safety, and countless companies continue to choose animal testing. (17)

   Despite the widespread historical misunderstanding regarding their consciousness, recent global developments have suggested that animals are "sentient beings" by developing and implementing legislative regulations to protect their rights. (18) The European Union ("EU") has aimed to prioritize animal welfare based on up to date scientific evidence of animal sentience. (19) For example, by 2009, the EU had already banned the use of animal testing for cosmetic purposes with regard to both complete cosmetic products and ingredients used in cosmetic products. (20) As of 2013, the EU has made it illegal to market any cosmetic product that has been tested on an animal. (21)

   A number of nations have followed the EU's trajectory by developing similar laws banning or limiting cosmetic animal testing. (22) In 2015, New Zealand amended its Animal Welfare Act to recognize the sentience of animals and to ban testing cosmetic products and ingredients on animals. (23) While cosmetic products were rarely, if ever, tested on animals in New Zealand, the amendment is meant to portray a global message that New Zealanders condemn cosmetic animal testing. (24) Unfortunately, the U.S. remains far behind numerous nations with respect to cosmetic animal testing legislation. (25)

3. FACTS

   Despite United States' slight attempt to develop regulations prioritizing animal welfare, the fact remains that no federal legislation protects the animals who continue to be subjected to the excruciating tests conducted in the cosmetic industry. (26) In fact, two of the most common animal species used for cosmetic testing are excluded from the United States' legal definition of an animal. (27)

   The United States has recently considered two policies, which, if implemented, would assist in regulating certain tests that are currently conducted on animals. (28) The first is entitled Use of Alternative Approaches for Skin Sensitization as a Replacement for Laboratory Animal Testing ("Use of Alternative Approaches") and was drafted by the Environmental Protection Agency ("EPA") to encourage non-animal testing methods for pesticides and industrial chemicals. (29) Although it is not specifically aimed toward the cosmetic industry, the Use of Alternative Approaches supports the use of non-animal testing methods in place of painful skin irritancy tests which are often used by cosmetic companies. (30) If enacted, the Use of Alternative Approaches may guide cosmetic companies toward replacing animal testing methods with the alternative techniques set forth in the policy. (31)

   In addition to the EPA's Use of Alternative Approaches policy, another policy, commonly referred to as the Humane Cosmetics Act, was introduced in Congress in 2017.32 The intent behind the Humane Cosmetics Act was to eliminate animal testing in the cosmetics industry by prohibiting the production and marketing of cosmetic products that were tested on animals and imposing a high civil penalty of up to $10,000 to companies for each violation. (33) Unfortunately, the Humane Cosmetics Act never received legitimate consideration in the House. (34) While neither the Humane Cosmetics Act nor the Use of Alternative Approaches were passed, the State of California has played an enormous role in setting the stage for states to develop their own cosmetic animal testing guidelines. (35)

   For decades, California has remained loyal to animal welfare and ahead of federal law when it comes to developing stricter regulations surrounding the use of animal testing. (36) After multiple failed attempts, California ultimately enacted Senate Bill 2082 ("S.B. 2082"), which became "the first statute in the U.S. to curtail animal testing in the cosmetic industry." (37) S.B. 2082 prohibits the use of animal testing methods for cosmetics, pesticides, and additional household products, where "an appropriate alternative test method has been scientifically validated and recommended by the Inter-Agency Coordinating Committee for the Validation of Alternative Methods (ICCVAM) ... and adopted by the relevant federal agency ... or program...." (38) Animal testing for medical purposes is exempted under California's bill. (39)

   In addition to California's legislature, many Californians have shown their support of cruelty-free cosmetic regulations through two class action fraud suits against cosmetic companies Avon and Mary Kay. (40) In both cases, the plaintiffs argued that the companies advertised as "cruelty free" in the U.S., however they also marketed their products in China, where law requires imported cosmetics to be tested on animals. (41) The plaintiffs argued that had they been aware that the cosmetic products were tested on animals in a foreign country, they would not have purchased the products. (42) Although the plaintiffs' claim in Beltran was dismissed before litigation, the Stanwood court held that Mary Kay had a duty to disclose that its products were tested on animals in a foreign nation because that information is a material fact, as the plaintiffs would not have purchased the products had it been disclosed. (43)

   Moreover, California has recently proven their continued loyalty to animal welfare by adding Senate Bill 1249 ("Cruelty Free Cosmetics Act" or "the Act") which is almost identical to the federally proposed Humane Cosmetics Act. (44) Pre-existing state law prevented California cosmetic companies from using traditional animal testing methods. (45) The Cruelty Free Cosmetics Act ("the Act") makes California the first and only state to explicitly prohibit the production and marketing of cosmetic products that were tested on animals. (46) The Cruelty Free Cosmetics Act will be effective on January 1, 2020, and after that date, any cosmetic product developed or manufactured using animal tests cannot be sold in California. (47) The Act does include exceptions, as it provides that animal tests may be used when the tested ingredient cannot be replaced, the test is required for a specific human health issue, and where the law has not accepted a non-animal alternative method. (48) It also does not prohibit animal tests that are conducted to comply with foreign cosmetic safety regulations, provided that the test results were not used to determine the product's safety in California. (49) Despite these exceptions, the California Cruelty Free Cosmetics Act is an enormous victory for animals and advocates alike, and supporters are hopeful that it will influence the federal government to reconsider and eventually enact the Humane Cosmetics Act. (50)

4. ANALYSIS

   While California's enactment of the Cruelty Free Cosmetics Act is a monumental accomplishment for animal rights supporters, it raises potentially concerning interstate commerce implications. (51) Although the states maintain control of their police...