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The High Court today handed down judgment clarifying the relationship between the EU Cosmetics Regulation (which regulates the safety of cosmetic products and ingredients), and the EU Regulation known as ‘REACH’ (which regulates chemicals generally). Both of those EU Regulations have been retained, with minor adaptations, as part of UK law after Brexit.
The Court was deciding a case brought by the campaign group Cruelty Free International (‘CFI’) relating to the Home Office’s change to its long-standing policy of not granting licences for proposed animal testing projects for assessing the safety of substances used predominantly or exclusively as ingredients in cosmetics (‘the Policy’).
The Policy was publicly adopted by the Home Office in 1998 and reiterated in the years since then. In 2015 the Home Office made it clear that the Policy was ‘an absolute ban’ on animal testing relating to cosmetic products and ingredients. The Home Office described the Policy as reflecting an ethical position that the causing of pain and suffering to animals cannot be justified for purposes relating to cosmetics.
After the Home Office had already adopted the Policy, EU cosmetics legislation (including the Cosmetics Regulation 2009) was made which included EU‑wide bans on both: (a) the carrying out of animal testing of cosmetics products and ingredients within the EU (“the Testing Bans”); and (b) the marketing in the EU of cosmetic products and ingredients that had been tested on animals after a specified cut-off date (“the Marketing Bans”).
In August 2021, however, it emerged from correspondence between CFI and the Home Office that the Home Office was no longer applying the Policy when considering licence applications for animal testing projects for generating data for satisfying requirements arising under the REACH Regulation.
The REACH Regulation includes requirements for manufacturers and importers of chemical substances to register those substances the European Chemicals Agency and to provide data relating to the ‘intrinsic properties’ of the substance including in terms of toxicity and other effects on human health and the environment. (The same requirements have been retained in UK law after Brexit, but with the Health and Safety Executive, rather than the European Chemicals Agency, being the regulatory authority.)
The practical effect of the Home Office no longer applying the Policy when considering applications for licences for animal testing projects for satisfying requirements arising under the REACH Regulation was that the Home Office was now willing to licence animal testing in Great Britain for purposes relating to cosmetic products and ingredients. This willingness was incompatible with the Policy.
The Home Office argued that it had had no choice but to stop applying the Policy. According to the Home Office, it was legally obliged by the REACH Regulation to be willing to grant licences for animal testing projects for satisfying requirements arising under that Regulation.
CFI brought a judicial review claim challenging the Home Office’s interpretation of the REACH Regulation and its legal effects. CFI also challenged the lawfulness of the Home Office’s conduct in ceasing to adhere to the Policy without modifying its published guidance or otherwise publicly announcing the change.
It emerged from disclosure and evidence provided by the Home Office during the court proceedings that the Home Office’s decision to resume granting licences for animal testing relating to cosmetic ingredients was taken in February 2019. There was thus a period of around 2½ years during which animal protection campaign groups and the public understood that the Policy remained in place (and, therefore, that animal testing for purposes relating to cosmetics was not being permitted in Great Britain), but the Home Office was in fact no longer applying the Policy.
In its judgment handed down today, the High Court (Mr Justice Linden) decided that the Home Office’s case that it was legally obliged to stop applying the Policy was wrong in law. The fact that an animal testing project was for generating data for satisfying a requirement arising under the REACH Regulation did not mean that the Home Office was legally required to grant – or even to be willing in principle to grant – licences permitting such testing. In other words, the Home Office could have chosen to maintain the Policy. It would therefore be lawful for the Home Secretary now to resume applying the Policy.
The Court also held, however, that the EU Testing Bans imposed by the Cosmetics Regulation do not prohibit animal testing carried out for the purpose of satisfying requirements arising under the REACH Regulation. Therefore, it was not unlawful for the Home Office to, in its discretion, choose to grant licences for such animal testing to take place. Further, the Home Office was not obliged by public law principles to inform CFI or the public that the Policy was no longer being applied. Therefore, CFI’s judicial review claim was dismissed.
A news article in the cosmetics industry journal Cosmetics Business reporting on the judgment (“UK government can reinstate policy ban on the animal testing of cosmetics, rules High Court judge”) is available here.
The full judgment is available here.
The Court has granted CFI permission to appeal to the Court of Appeal in respect of the interpretation of the REACH Regulation and its relationship with the Cosmetics Regulation.
Monckton barrister Alan Bates represented the claimant, CFI.