The Cartesian thesis which maintained that animals’ lack of consciousness implied that they should be treated as objects rather than sentient beings and denied their ability to feel pain^[1], has faded away, and is nowadays believed to be a “monstrous thesis”^[2]. These moral and philosophical considerations have even started to reflect in different countries’ legislations, but the level of protection awarded to animals is highly uneven, and unfortunately insufficient.

People who advocate animal rights^[3] have acclaimed the European legislation on animal testing in the cosmetics industry, but one should not be too quick to cry victory. Indeed, if the commonly named “Cosmetic Directive”^[4], a legislation originally designed to provide a uniform level of health protection in the member states, has, as early as in 1993, started taking animal welfare into account by way of a revolutionary provision foreseeing a complete ban on animal testing, its implementation has proved quite disappointing.

A brief overview of the European legal landscape appears necessary to the understanding of this critic of the ineffective application of an otherwise satisfactory piece of legislation. European legislation is the product of a co-decision procedure among the European Parliament, the European Council, and the European Commission, which respectively represent the interests of the European citizens, of the governments of the member states, and finally of the European Union itself. The upholders of animal rights have envied the European forward-looking state of mind, but the truth is that the Cosmetic Directive’s animal testing ban reflects the will of the European citizens, whereas it is not supported by all the European institutions, or by all national governments.

If most national governments complied willingly with the provisions of the Cosmetics Directive, France, which enjoys a leading position in the cosmetics industry as well as one of the highest levels of consumption of cosmetic products per habitant^[5], expressed its reluctance to accept the new European legislation, when it challenged its validity^[6]. France argued that the Directive lacked clarity, and that the goal of protection of the animals did not represent an interest sufficient to limit freedom to exercise a professional activity^[7], an attempt to annihilate a historic provision on animal welfare which was described as shameful and appalling^[8].

As far as the European Commission is concerned, it has tried, unsuccessfully, to limit the impact of the Directive, by ascertaining that the ban should only concern the ability to resort to animal experimentation within the European boundaries, to the exclusion of a marketing ban^[9]. But such a restriction would have rendered the testing ban useless since European cosmetic laboratories would have been able to relocate the animal testing outside the EU. Despite the Commission’s hinderance, a marketing as well as a testing ban came into effect in 2009, but this prohibition merely applies to specific tests for which alternative testing methods have already been validated. The tests that concern the most complex health effects (namely repeated dose toxicity, reproductive toxicity, toxicokinectics) will only be banned in 2013, a deadline that is unlikely to be respected by the Commission. As a result, in Europe, laboratories are still able to market some products that have been tested on animals, a situation that will probably endure.

Furthermore, one should remain mindful of the incessant critics addressed by the Parliament to the European Commission, which has constantly endeavored to delay the enforcement of the ban. Of course, the Directive itself provided for a possible delay of the prohibition^[10] in the event of a failure to develop alternative testing methods, but it seems that the Commission has abused its prerogative, as it has postponed the ban’s deadline once too many times. Originally, a complete prohibition should have been implemented in 1998, but it has been regularly delayed on the basis of the yearly reports of the Commission that kept repeating that some very good progress was made^[11], but full replacement of in vivo experimentation would not be available before the deadline. We are now in 2012, and the Commission recently asserted that for the scientific tests concerning the most complex health effects, a 2020 deadline was optimistic and even refused to establish a timeline^[12]. One can only join the European Parliament as it deplores and challenges the legality of these incessant postponements^[13], and “calls into question whether all reasonable endeavors have been made to develop and validate such alternatives”^[14].

Thus, the Commission is treating what was praised as a revolutionary ban on animal testing as if it were a mere application of the « Three Rs method » (which consists of the “Replacement” of animal testing by alternative methods whenever possible, the “Reduction” of the number of animals, and the “Refinement” of the testing methods in order to reduce the amount of pain inflicted). The use  of the Three R’s method is an acknowledgement that animals deserve the protection of the law, but is far from being an innovation, since it was developed in 1959 by Russel and Burch and has been a component of European law since … 1986. Indeed, the 86/609/EEC Directive, that was not limited to the cosmetics industry, already stated that “an experiment shall not be performed if another scientifically satisfactory method of obtaining the result sought, not entailing the use of an animal, is reasonably and practicably available.”^[15]

---