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2023
Case No: CO/3748/2021
Advocates for Animals acted for Cruelty Free International (CFI) in a judicial review against the Secretary of State for the Home Department (the Home Office) concerning her abandonment of a policy which prevented cosmetic products and their ingredients being tested on animals.
The case also concerned the interplay between EU Regulations retained by the UK post-Brexit (albeit with some minor amendments) concerning the safety of cosmetics and their ingredients, on the one hand, and the safety of chemicals more generally (including ingredients used in cosmetics), on the other).
Judgement was handed down in May 2023.
The law
Part of the Home Office’s function is to regulate and develop policies around animal experimentation in Great Britain, carried out by its Animals in Science Regulation Unit (ASRU).
The Animals (Scientific Procedures) Act 1986 permits experiments (‘procedures’) on living vertebrate and some invertebrate animals in some circumstances. A researcher requires a project licence. Before granting a licence, the Secretary of State (the Home Secretary) must be satisfied, amongst other things, that the likely benefits outweigh the expected harm to the animals (the harm: benefit test).
From the late 1990s the Home Office had a long-standing policy not to grant licences to assess the safety of ingredients used exclusively or predominantly for cosmetics. It used the harm: benefit test as the basis for the policy – the harm to the animals was not justified by the triviality of the benefit.
In 2003, the EU introduced a similar, legislative testing ban, later confirmed in the Cosmetics Regulation (No 1223/2009) . This also prohibited the sale in the EU of cosmetics tested on animals anywhere in the world, essentially after March 2013.
In 2006, the EU passed REACH (No 1907/2006), requiring companies to hold, and if necessary generate, data for most chemicals (including those used in cosmetics). REACH necessitates a great deal of animal testing.
There was therefore potential conflict between the two pieces of legislation: the Cosmetics Regulation banned animal testing for cosmetics whereas REACH seemed to require it. The conflict appeared to be resolved by REACH saying that its testing requirements were ‘without prejudice’ to the Cosmetics Regulations bans – in other words, those bans took precedence.
The facts
Following statements by the European Commission and the European Chemicals Agency (ECHA) (which regulates REACH), in 2015 the Home Office issued a newsletter (for licence holders) confirming that the UK’s policy remained in place and constituted an absolute ban “even where EU legislation would appear to require to permit such testing”. The newsletter also confirmed that no such licence had been granted in the UK since 1998.
In 2020 ECHA’s Board of Appeal handed down decisions in two appeals brought by Symrise, a German chemical company ) where it concluded that the Cosmetics Regulation did not prevent animal testing if the testing was pursuant to the information requirements in REACH. The effect was to make the Cosmetics Regulation bans of virtually no effect. Symrise has challenged those decisions at the General Court (part of the Court of Justice of the European Union) and Cruelty Free Europe, also represented by Advocates for Animals, has been given permission to intervene. Judgment is awaited.
Following the Symrise decisions, CFI asked the Home Office for its present position. The department said it was following the Symrise decisions and was no longer following the 1998 policy. The Claimant therefore brought judicial review proceedings challenging the Home Office’s interpretation of REACH and the lawfulness of the Home Office’s conduct in abandoning its earlier policy. In the course of disclosure, it became apparent that the department had in fact secretly abandoned its ban back in 2019.
CFI asserted:
that the policy had been unlawfully changed from 2019 onwards, without communication or consultation and;
licences had been automatically granted where the Health and Safety Executive (HSE) and other UK regulators required them on scientific grounds, rather than a harm/benefit analysis being carried out on a case-by-case basis
the Home Office had misconstrued the relationship between the UK versions of REACH and the Cosmetics Regulation
Held
Mr Justice Linden held that the Home Office could have maintained its policy. It did not have to abandon it and, as such, it was entirely feasible for the Home Office to reinstate the policy should it wish to do so. He recorded that the Home Office conceded during the case that it could not simply do the bidding of other UK regulators – it had to apply the harm: benefit test in each case.
The court also criticised the Home Office for its lack of transparency regarding the change in policy and noted it was “regrettable” that the Home Office did not announce such a change and essentially make it more widely known. At paragraph 201 the judge noted: “…officials were aware of the expectations of the public but chose not to publicise the policy because the change would be politically unpopular”.
However, the Home Office had not breached its legal duties in this respect: the public did not have a legitimate expectation to be informed about the change in policy and the Claimant and other animal protection organisations did not have a legitimate expectation of being consulted.
On the construction issue, the judge held that the bans imposed by the Cosmetics Regulation did not stop animal testing to be carried out for the purposes of satisfying the REACH Regulation.
Commentary
Animal testing for cosmetic purposes, in particular, has always sparked a great deal of public distaste. For most people it is morally unacceptable to carry out animal testing purely in the name of vanity and it was this unease that ultimately led the Government to introduce the policy ban in the late 1990s.
A YouGov poll in 2021 (reflecting numerous others) showed that 85% of people in the UK find it unacceptable to test cosmetic ingredients on animals.
Following the judge’s finding that it could legally do so, the Home Office has now reinstated the policy ban insofar as it relates to cosmetics exclusively used in cosmetics (about 20% of all cosmetics ingredients).
The judge, unusually, gave CFI permission to appeal on the construction issue. The Court of Appeal is expected to be heard in the Autumn.
Getting advice
Please note, this post is not legal advice and should not be relied on as such. If you require legal advice in respect of animal protection law, please contact info@advocates-for-animals.com.