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State bans on animal testing - what they do and what they exempt

States with animal test bans

US states are moving to ban animal testing of cosmetics. Seven states now have bans: California, Nevada, Illinois, Virginia, Maryland, Maine & Hawaii. Four more states have introduced bills: New Jersey, New York, Oregon & Rhode Island.

These efforts are supported by industry, largely because they reflect current industry practice. In general, the cosmetic industry now avoids all animal testing unless required by a specific regulation.

The main battle ahead is to change the minds of regulators requiring these tests.

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What the State Bans Do

The states have similar language for their bans, often word for word. The key provisions in the bans are:

  1. A cosmetic manufacturer cannot import or sell any cosmetic developed or manufactured using an animal test conducted after a specified date, usually January 1 of the year after the law took effect.

  2. The ban applies to tests on finished cosmetics and their ingredients.

  3. The ban applies to tests conducted or contracted by the manufacturer or any supplier of the manufacturer.

There are exceptions

Every state ban includes the same exceptions to the ban. The following list shows the exceptions and their effect on the cosmetics we use.

Exception

Effect

Tests on invertebrate animals

Allows tests on the water flea, the invertebrate typically used in cosmetic tests for ecosystem effects. Affects many cosmetic ingredients, including all made in or imported into the EU in quantities over 1 ton/year.

Tests on sunscreen active ingredients

Allows tests on the 16 FDA-approved active sunscreen ingredients. Likely related to the FDA's proposed new sunscreen regulation requiring new safety data. Zinc oxide and titanium dioxide are less likely to be affected, because the FDA's proposal designates these as Generally Recognized As Safe (GRAS).

Some tests for US/state regulations

Test is allowed only if all the following are true: A health problem is substantiated; the ingredient is widely used with no available substitute; no accepted non-animal alternative exists. Likely, few tests will qualify.

Tests for foreign regulations; the tests can't be used to assess cosmetic safety

Hard to estimate, but currently few ingredients are likely affected. A study of 65 cosmetic ingredients found that only five of the ingredients had tests for foreign regulations from 2009-2020. This will change if the EU upholds a recent ruling that allows ECHA, an EU regulatory agency, to require animal testing of cosmetic ingredients under its REACH program. If that happens, many cosmetic ingredients will be tested on animals.

Tests for a non-cosmetic purpose when the ingredient has non-cosmetic uses.

This affects most cosmetic ingredients, most of which have other uses, such as for household products.

A major difference in the language used by some states is significant:

  • California, Illinois & Maine exempt such tests (i.e., a cosmetic with such a test can be sold), but they ban use of the test for assessing cosmetic safety in their states. This promotes the shift to alternatives.
  • Nevada, Virginia, Maryland & Hawaii exempt such tests, and they also allow use of such tests to assess cosmetic safety in their states. By allowing use of the test to assess the cosmetic, they give companies no incentive to use non-animal alternatives.

Despite the exceptions, it's progress.

July 2021

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