Locke Lord QuickStudy: California Animal Rights Act

September 12, 2018

On September 1st, California lawmakers unanimously approved Senate Bill 1249 known as the California Cruelty-Free Cosmetics Act, which will essentially ban animal testing on finished product and cosmetic ingredients, conducted after January 1, 2020, subject to the limited exceptions discussed below. The Bill, which defines animal testing as the internal or external application of cosmetic, either in its final form or any ingredient thereof, to the skin, eyes, or other body part of a live non-human vertebrate, has been sent to Governor Jerry Brown for his signature. It is expected that Governor Brown will sign the Bill into law.

The California Bill renders illegal and bans the sale, offering for sale, or importing for profit in the State of California cosmetic products where the product or any of its ingredients were tested on animals after January 1, 2020. Subject to the limited exceptions listed below, the ban applies regardless of where or why the animal test was conducted. The Bill establishes fines of $5,000 per violation and $1,000 per day for each day the violation continues, though it is not clear how the calculations of the fines will be applied. The Bill does provide a 180-day sell-off period for product in violation of the ban. Exactly how and when this will be applied is also not completely clear.

The Bill does, as noted above, provide limited exemptions to the testing ban for:
  • Animal testing required by a state or federal law, provided the ingredients were in wide use and there is not an alternative ingredient available that was not tested on animals, or the need for animal testing is required to address a human health issue and the study was supported by an appropriate study design, or if the study was required for drug approval, provided that there is not an alternate testing method available. 
  • Animal tests conducted on ingredients tested for non-cosmetic uses where the tests were conducted to comply with federal, state, or foreign government requirements, provided the data from this testing was not relied upon to support safety of the ingredient for cosmetic use. 
  • Tests required by foreign governments on finished products, provided the data was not relied upon for supporting safety for California distribution.
The Bill provides for enforcement by city and county attorneys who have the right to obtain on reasonable suspicion of a violation, product/ingredient testing information. Any information provided will be considered trade secret.

While the California law was based on the EU ban on animal testing of cosmetics, the California law goes farther and bans products whose ingredients are tested on animals. What is interesting about the ingredient ban is it does not ban ingredients based upon chemical structure but rather upon whether anyone in a manufacturer’s ingredient supply chain tested the chemical/ingredient on animals.

Compliance with this Bill may have the effect of raising product costs and may also encourage other states to enable somewhat similar laws but with different final requirements leading to difficulties in complying with all state laws. Consequently, the California bill has the potential to make product improvements have a more difficult regulatory pathway.