Overview
California’s state legislature recently became the first in the nation to ban the sale of cosmetics tested on animals. Governor Brown signed the bill into law on Friday.
The bill, SB 1249, makes it unlawful to sell or offer for sale “any cosmetic, if the cosmetic was developed or manufactured using an animal test.” Penalties for non-compliance start at $5,000, with an additional $1,000 for each day that the violation continues. The ban would not apply to tests conducted to comply with federal law, so long as the ingredient cannot be replaced with an alternative, the need for the test is based on a substantiated human health problem, and no acceptable alternative test exists.[1] The bill also contains a carve-out provision for complying with foreign regulatory requirements, so long as no evidence from the test was relied on to substantiate the safety of a cosmetic sold in California.[2]
SB 1249 goes into effect on January 1, 2020 for any cosmetic product sold where tests were conducted or contracted after that date. Cosmetics in their final form that were first sold in California before January 1, 2020, are grandfathered in even if a particular batch of that cosmetic was manufactured after January 1, 2020. Local district attorneys in California are empowered to review a manufacturer’s testing data if there is a reasonable likelihood to believe that an animal test has occurred.
The law is the first of its kind in the United States. Previously, California was the first state in the nation to ban actual animal testing (but not the sale of the products tested on animals themselves). New York, New Jersey, and Virginia have similar laws barring animal testing. California has a long history of regulation for environmental and animal-related issues, including its infamous Proposition 65 (see Steptoe’s previous coverage here), as well as an attempt earlier this year to create labelling requirements for polyester. San Francisco and West Hollywood have also banned the sale of animal fur products, and Los Angeles is considering a similar fur sale ban. California has also banned the importation of certain exotic animal skins, such as pythons, cheetahs, and whales.
The governor’s signature may not be the last word, however. The law may be susceptible to challenges under the US Constitution’s Commerce Clause, as states generally may pass health and safety regulations but cannot do so in a way that discriminates against interstate commerce. The law may also be susceptible to a federal preemption challenge, as cosmetics are already regulated by the federal Food and Drug Administration, which allows animal testing to assure the safety of a product or ingredient (though the FDA encourages manufacturers to use alternate testing methods where available).
[1] Alternative tests have not yet been developed for every test required under federal law, such as some inhalation tests.
[2] Some foreign jurisdictions, such as China, require cosmetics to be tested on animals.