Report in support of the New York Cruelty-Free Cosmetics Act

A.5653-B (M. of A. L. Rosenthal)
S.4839-B (Sen. Biaggi)

AN ACT to amend the general business law, in relation to prohibiting the sale of cosmetics tested on animals.

 New York Cruelty-Free Cosmetics Act

THIS LEGISLATION IS APPROVED

I.  SUMMARY OF THE PROPOSED LEGISLATION

The New York Cruelty Free Cosmetics Act (the “Act”) would ban the sale in New York State of any cosmetic which the manufacturer knew or should have known was tested on animals on behalf of the manufacturer or any supplier of the manufacturer after January 1, 2023.[1] The Act contains several exceptions that are applicable under certain conditions. For example, the ban does not apply to animal testing required by federal or state regulation if the cosmetic ingredient being tested is in wide use and cannot be replaced by another ingredient, if  the animal testing is justified and supported by a detailed protocol for research where a specific health problem relating to the cosmetic or an ingredient is substantiated, and if there is no substitute for animal testing accepted by the state or federal agency.[2] It also does not apply to cosmetics that were tested on animals as a requirement of a foreign jurisdiction as long as the evidence of such animal testing is not relied upon to substantiate the safety of the cosmetic sold in New York.[3] The Act also does not apply to cosmetics that were tested on animals before January 1, 2023.[4]

The Act authorizes the New York attorney general to bring an action to enjoin a manufacturer of a cosmetic that violates the Act from continuing to do so. A civil penalty of $5000 may be imposed for the first violation of the Act and an additional violation of $1000 per day for a continuing violation.[5]

II.  BACKGROUND

Cosmetics[6] are not required to be tested on animals under United States law; neither are such tests banned in the U.S.[7] The 1938 Federal Food, Drug and Cosmetic Act (the “FD&C Act”) only prohibits the marketing of adulterated or misbranded cosmetics in interstate commerce and authorizes the federal government to remove cosmetics from the market that are deemed hazardous.[8]

For decades, cosmetic companies have tested ingredients in cosmetic products on guinea pigs, rabbits, mice, rats and other animals to limit product liability claims and substantiate claims that their products are safe.[9] The Draize eye and skin irritancy test, developed in 1944 in the wake of the passage of the FD&C Act, is used to measure the irritation potential of substances that come in contact with human eyes and skin.[10] The “LD50” or “lethal dose” test is used to evaluate the possible toxicity of a substance. [11] Animals are not required to be given any pain relief during the testing process.[12]  It is estimated that up to 500,000 animals are maimed and killed per year for cosmetics testing.[13]

Although the U.S. Department of Agriculture inspects facilities that test on animals pursuant to the federal Animal Welfare Act (“AWA”), most animals that are used as test subjects (including mice and rats) are not covered by the AWA.[14] Instead, the AWA fails to protect approximately 95% of animals that are used for testing.[15]

III.  JUSTIFICATION

The Committee supports the Act because it would (a) encourage the end to a cruel and barbaric practice; (b) advance the use of alternative testing methods; (c) follow the national and international trend toward abolishing cosmetic animal testing; and (d) reflect the preference of most consumers for cruelty-free cosmetics.

a.  Animals Feel Pain.

The National Academy of Sciences (the “NSA”) has acknowledged that “all vertebrates should be considered capable of feeling pain.”[16] Consequently, “when laboratory animals are subjected to conditions that do cause pain or distress, then ethically—at least from a utilitarian perspective—the benefits must outweigh the costs….”[17]

Banning the animal testing of cosmetics prevents causing pain and death to animals for the sake of human vanity.[18] Animals subjected to cosmetic testing experience significant pain over a protracted period and rarely receive pain relief.[19] Animals are commonly killed at the completion of the test[20] by brutal methods including asphyxiation, neck breaking, and decapitation.[21] In the acute oral toxicity variation of the LD50 test, a cosmetic product or ingredient is administered to rats or mice in increasing amounts until half of them die to determine what amounts of a particular substance will cause their death.[22] The substance is either forced down their throats or is continuously applied to their skin often causing the animals to suffer abdominal pain, diarrhea, convulsions, seizures, paralysis, or bleeding before they die or are killed.[23] The Draize eye test, in which a cosmetic product or ingredient is administered into rabbits’ eyes and left untreated over a period of time— usually without anesthesia— causes the rabbits to suffer bleeding, ulceration, and blindness.[24] The rabbits’ eyes are often held in devices with only their heads exposed (to prevent the animal from scratching its eyes), sometimes resulting in them breaking their necks or backs, while struggling to escape from the pain.[25]

The Food and Drug Administration (the “FDA”) now endorses the view that before animals are used for testing “consideration should be given to the use of scientifically valid alternative methods to whole-animal testing.”[26] It has joined with thirteen other agencies to form the Interagency Coordinating Committee on the Validation of Alternative Methods (“ICCVAM”), which is leading the federal effort to reduce, refine and replace animal testing where scientifically possible.[27]

The Act would compel cosmetic manufacturers to re-consider their reliance on animal testing and to rely on new methods of ensuring the safety of their products that does not maim and kill animals.

b.  Alternative Testing Methods Are Equal or Superior to Animal Testing.

The Act would promote an end to inherently unreliable and inaccurate animal testing. There is a growing consensus that animal testing is ineffective because “non-human animals are not good predictors of how products and treatments will affect humans.”[28] As the NAS observed:

Using the results of animal tests to predict human health effects involves a number of assumptions and extrapolations that remain controversial. Test animals are often exposed to higher doses than would be expected for typical human exposures, requiring assumptions about effect at lower doses or exposures. Test animals are typically observed for overt signs of adverse health effects, which provide little information about biological changes leading to such health effects. Often controversial uncertainty factors must be applied to account for differences between test animals and humans. Finally, use of animals in testing is expensive and time consuming, and it sometimes raises ethical issues.[29]

Moreover, research has confirmed that these “unintended variables” that arise from animal testing “can be reduced or eliminated with non-animal alternatives.”[30] Such alternative testing methods are often “faster to perform, less costly, and provide more reliable results than tests performed on live animals.”[31]

As an initial matter, thousands of commonly used cosmetic ingredients have already been proven safe for human use and do not need to be re-tested on animals to be safely used in current or future cosmetics.[32] Other alternatives to animal testing include in vitro and in silica testing.

In vitro testing involves the use of human cells and tissues to test the effect of cosmetic ingredients and other chemicals on the human body. Examples include human-cell derived models of human skin that can be used to replace tests previously performed on living animals to evaluate how a chemical can corrode or irritate skin.[33] Another example of in vitro tests that can replace animal testing are so-called “organs-on-chips” developed by Harvard University’s Wyss Institute. These chips contain channels lined by living human cells and can be used to replicate the microenvironment of living organs.[34]

In silica testing is “performed on a computer or via computational simulation.”[35] The benefits of in silica testing are its potentially low cost, and that it does not require samples  —“substances need only be present in a digital format.”[36] Today, sophisticated computational models can be used to “describe and understand biological systems as a whole and how they operate” or to apply “computational techniques to vast amounts of data to understand how cells and cell systems work.”[37] These models can predict how cosmetic ingredients will react in the body and replace the use of animals as test subjects.[38] One specific in silica based alternative to animal testing is quantitative structural activity relationship (“QSAR”) research.[39] Using QSAR, researchers “enter mathematical models of known chemicals into a database, which they use to compare new substances and predict a chemical’s risk of causing health issues like allergic reactions, hormonal imbalances, and even cancer all without the use of animals.”[40]

The Act would encourage the use of these cruelty-free alternatives to ensure human safety.

c.  National and International Trends Move to Abolishing the Sale and Marketing of Cosmetics Tested on Animals.

New York, along with several other states, have already enacted laws prohibiting animal testing for cosmetic products where a non-animal testing alternative exists.[41] However, the sale of cosmetics tested on animals elsewhere is still legal in New York.

California (2020), Hawaii (2022), Illinois (2020), Maine (2021), Maryland (2022), Nevada (2020), New Jersey (2022), and Virginia (2022) have passed laws banning the sale of cosmetics tested on animals.[42] Such state laws, and likewise, the Act, may encounter legal challenges citing to the U.S. Constitution’s Commerce Clause.[43] However, in the Committee’s view, the Act would likely survive a Commerce Clause challenge. The Act does not discriminate against interstate commerce because it bans cosmetic production based only on the “method of production” rather than the location of production; it bans comestics tested on animals both in New York and out of state; it is not solely aimed at out-of-state manufacturers, and it only imposes production standards on cosmetics sold in New York.[44]

At the federal level, the Humane Cosmetics Act (the “HCA”) was reintroduced in December 2021 by a bipartisan coalition of senators and representatives. The HCA would end both the testing of cosmetics on animals and would also ban the sale of products developed using animal testing.[45] In addition to wide bipartisan support, this legislation has the support of both animal welfare organizations and the cosmetic industry.[46]

Internationally, the movement toward cruelty-free cosmetics is growing faster than in the U.S. In addition to the twenty-seven countries of the European Union (2013), fourteen other countries have banned testing cosmetics on animals and/or the sale of cosmetics tested on animals including: Australia (2020), Columbia (2024), Guatemala (2017), Iceland (2014), India (2014), Israel (2013), Mexico (2023), Norway (2013), South Korea (2022), Switzerland (2017), Turkey (2016), and the United Kingdom (1998). While New Zealand (2015) and Taiwan (2019) ban testing within the country, they allow the sale of cosmetics tested on animals.[47] In addition, eight of the twenty-six states of Brazil have also enacted such laws.[48] Even China, which had been one of the few jurisdictions to mandate animal testing of cosmetics, has loosened that requirement.[49]

By passing the Act, New York would join the growing list of countries and states that have chosen compassion over cruelty.

d.  Consumers Favor Cruelty-Free Products.

Polls have demonstrated that most Americans oppose testing cosmetics on animals. For example, a 2013 poll of American voters showed that 68% of respondents know that animals were used to test the safety of cosmetics.[50] Seventy percent of voters reported that they would feel safer, or as safe, if non-animal methods were used to test cosmetics.[51] Sixty-two percent of respondents support ending cosmetic testing on animals, with support crossing partisan, demographic, and geographic lines.[52] Other polls illustrate that support for cruelty-free cosmetics has grown since 2013. A “poll conducted in 2019 revealed that close to 80% of Americans surveyed are overwhelmingly against animal testing for cosmetics.”[53]

Given this increased public support for cruelty-free cosmetics, the Act makes sense both politically and economically. The global demand for cruelty-free cosmetics was valued at $5.1 billion in 2020 and is predicted to reach more than $9.9 billion by 2031.[54] As Andrea Blieden, the U.S. General Manager of The Body Shop said in support of the Nevada Cruelty-Free Cosmetics Act, “Our company has proven that creating safe and humane cosmetics is possible and profitable. Now with roughly half the global cosmetics market now firmly closed to animal tested cosmetics, and an upward trend of other countries following suit, the time is right” for further banning the testing of cosmetics on animals.[55] Considering that New York City is widely looked upon “as a global capital of fashion and beauty, and New York State has the third-largest economy in the United States,”[56] passage of the Act by New York would send a strong message that banning this cruel practice is the politically and economically responsible thing to do.

IV.  CONCLUSION

For all the reasons above, the Committee approves the proposed legislation.

Animal Law Committee
Robyn S. Hederman, Co-Chair
Rebecca Seltzer, Co-Chair

May 2022