In the Cards: Betting on Vetrinary Telemedicine Legal ReformNovember 1, 2022
Animal Cruelty Task Force Created in Fifth Judicial CircuitJanuary 23, 2023
By Savannah Sherman
Vol. 97, No. 1 January/February 2023 Pg 38
Animal testing is an issue that has been at the center of debate in the scientific and legal communities for decades as cosmetics, household cleaning products, medicines, food additives, and agricultural products are all subject to animal testing. Mice, rats, dogs, guinea pigs, cats, chimpanzees, and rabbits are among the species commonly used to test products via painful and inefficient experimentation. Animals are exposed to harsh chemicals and then observed to monitor the long-term effects of their injuries without traditional anesthetic or pain treatment, and such testing is not required to establish the safety of cosmetic products. In fact, testing can be performed with more precision and accuracy by using alternative methods, such as cell cultures, donated human tissues and organs, computer modeling, and human volunteers.
With more and more cosmetic companies donning a “cruelty-free” badge on the front of their packaging, the market has pushed for more ethical consumption. This push signals that cosmetic testing is facing increasing levels of public scrutiny. However, some companies hide behind a pseudo cruelty-free label by outsourcing testing to independent laboratories or having tests performed overseas. Major animal welfare organizations, such as People for the Ethical Treatment of Animals (PETA) and Leaping Bunny, have cruelty-free certification programs that allow companies to use a signature cruelty-free label as long as they meet the minimum standards set forth by the Coalition for Consumer Information on Cosmetics.
Consumers don’t always associate their favorite shampoo, face cream, mascara, or cleaning products with animal cruelty. Unfortunately, the link between beauty products and animal suffering continues to exist today despite anti-animal testing movements. Cosmetic animal testing in the United States first began on a large scale in 1938 with the passage of the Food, Drug, and Cosmetic Act. Animal subjects were used to test the safety of chemicals added to cosmetics through a series of painful experiments that still take place today. In 2019 alone, 797,546 animals were experimented on in the U.S., 5,564 of which were in Florida. Cosmetic trials involve many horrendous tests including rabbits being shaved, held down, and having chemicals rubbed into their skin and dropped into their eyes. All of which is done without anesthesia or pain relief. Cosmetics are also tested for their lethal dose by force-feeding ingredients to rats and measuring the dosage at which death occurs. In these trials, chemicals in cosmetics are fed to mice over several weeks or months to test for adverse reactions and illnesses. Such tests lead to unnecessary animal suffering that can be prevented by using other methods of research.
Alternatives to animal testing have proven to be effective for evaluating the safety of cosmetics. Alternative testing can more closely mimic how the human body may respond to a given chemical more accurately than animal experiments and is often less expensive and more efficient than using animals.
Despite the availability of alternative testing methods, many cosmetic companies continue to use animal testing. One reason is the requirement set by China for selling imported cosmetics. The Chinese government requires all special-use cosmetics to be tested on animals before sale. Additionally, as of May 2021, all products must be tested unless the cosmetic company applies for a special exemption. Prior to this date, China required all imported cosmetics, regardless of use, to be tested on animals before being sold in the country. The new legislation allows for nonspecial-use products to be exempt from testing so long as the cosmetic company successfully applies for the exemption. Special-use products include sunscreens, hair dyes, whitening products, hair loss products, and all products containing new ingredients. This relaxation of animal testing laws signals a step in the right direction; however, millions of animals still suffer for the sake of selling beauty products overseas. Many companies, such as Maybelline, Makeup Forever, NARS, Clinique, and Neutrogena, do not conduct animal testing in the U.S., but do conduct animal testing in China to be able to sell in the Chinese market. These companies often claim to not test on animals unless required to by law; however, that is misleading. Cruelty-free brands, such as Tarte, NYX, and most recently, Covergirl, elect not to sell in China to avoid participating in animal testing. No company is required to test on animals unless that company chooses to sell in China, therefore, it is entirely up to a cosmetic company whether they choose to participate in animal cruelty.
Animal testing is inaccurate, costly, and less reliable than alternative testing methods. In animal experiments for human medications, 92% of drugs that are initially deemed safe in animal trials are later deemed ineffective or unsafe for human use. If that isn’t enough to disprove the need for animal testing, the fact that we have cured cancer in mice for decades, but have yet to cure cancer in humans, is enough to show the disparity in between species biology. For cosmetics, a common series of testing is performed to evaluate skin irritation and corrosion, eye irritation and corrosion, skin sensitization, and oral, topical, and inhalation toxicity.
Animal test subjects often produce unreliable results in evaluating chemical toxicity in humans. One such reason for this unreliability is the inhuman and unnatural conditions of laboratories. Animals are confined to laboratory rooms for the entire duration of their lives with heightened levels of stress that increases the animals’ cortisol levels and causes skewed test results. Laboratory variables, such as heightened noise levels, lack of natural light, small cage sizes, and even the material of the flooring, disrupt an animal’s physiological responses to stimuli and create behaviors that are unlike normal, healthy functions. Sudden, loud noises, such as the sounds of metal cages, doors, and humans speaking, contribute to elevated stress in animals. This stress is especially prevalent in prey animals, such as mice, as the sudden noises mimic sounds associated with danger. In practice, these discrepancies between normal animal behavior and laboratory-induced stress behaviors create unreliable test results. Some laboratories have attempted to account for these discrepancies by altering animal housing environments to more closely mimic natural habitats. Such changes include limiting noise levels, placing lights on timers, and increasing cage sizes. Still, even with such efforts, the contrast between a laboratory environment and an animal’s natural habitat remains enough to inhibit natural behavior and produce unreliable results.
Another source of concern in animal testing is the lack of predictability between animal and human responses to chemicals. Animal physiology is starkly different from humans, which leads to unreliable results that cannot predict how the human body will respond to any given chemical. For example, a 2013 study found that mice test subjects could not accurately mimic human inflammatory responses and, therefore, could not be relied upon to evaluate new therapeutic approaches. Another study found that 26% of chemicals produced different responses when tested multiple times on the same species. Animal sensitivity to chemical compounds does not accurately reflect how the human body will respond and does little to create safe cosmetics.
The prevalence of alternative and more accurate methods for evaluating chemical safety leaves no reason to continue to practice cosmetic animal testing. Computer software programs, such as QSAR models, provide a method of testing toxicity that is low-cost and effective. In a recent study, a dynamic computer model successfully tested 62 drugs for their cardiac effects using data collected from over 140 human hearts, an experiment that would have traditionally been conducted on rabbit hearts. Stem cells also present the opportunity to test chemicals on human tissues without the need to account for differences in species and physiology. Stem cells allow us to evaluate chemical toxicity in human tissues, which is especially applicable to the testing process of cosmetics. Nonetheless, cosmetic animal testing is wholly unnecessary, as evidenced by the countless cosmetic companies that choose not to partake in it.
The European Union banned cosmetic animal testing for finished products in 2004 and single ingredients in 2009. Many countries have followed suit and implemented similar bans, including Guatemala, Taiwan, Norway, Australia, New Zealand, Switzerland, and more.
In 1966, the Animal Welfare Act (AWA) was passed to promote animal welfare in research, zoos, pets, and animal transportation. The U.S. Department of Agriculture (USDA) is responsible for enforcing the AWA, which includes inspecting animal facilities and investigating AWA violations. The AWA requires research facilities to minimize pain during experiments, administer veterinary care, and appropriate anesthetics. Additionally, in any experiment which may cause pain to an animal, research facilities must consult with a veterinarian during the planning process of the experiment to discuss proper anesthetics and animal care before and after the procedure. The AWA also mandates that anesthetics and tranquilizers may only be withheld when and for the period of time necessary.
The U.S. currently has no national law prohibiting cosmetic animal testing but several states have banned it, including Virginia, Maryland, California, Illinois, and Nevada. On September 26, 2022, California passed S.B. 879, which bans toxicological tests on dogs and cats conducted under certain circumstances. Animal welfare activists and legislators in Florida have attempted to pass legislation to ban the sale of cosmetics tested on animals, but to no avail. Florida House Rep. Kristen Arrington proposed H.B. 1279 to prohibit the manufacturing, import, sale, or offer of cosmetics in Florida that have been developed or manufactured through animal testing. The bill died in the Regulatory Reform Subcommittee. C.S./S.B. 1718, a similar bill known as the “Humane Cosmetics Act” by Sen. Lauren Book, died in Appropriations on March 14, 2022. Despite efforts to regulate animal testing, Florida has failed to fulfill any ban on cosmetic animal testing.
The potential for future legislation in Florida is not lost. Virginia’s attempt to legislate failed in 2019, and again in 2020, before finally passing in 2021. In Maryland, proposed legislation to prohibit cosmetic animal testing was first proposed in 2019, but the measures were not officially accepted until 2021. The unfortunate state of Florida’s H.B. 1279 and C.S./S.B. 1718 does not signify that Florida will be unable to outlaw cosmetic animal testing; rather, Florida may follow a path similar to Virginia and Maryland to enact legislation in the near future.
There is little caselaw regarding challenges to cosmetic animal testing. One potential legal issue in cosmetic consumption, however, is deciphering labels regarding animal testing. Many brands are certified “cruelty-free” by the Leaping Bunny or PETA, which requires brands to comply with a series of rules to maintain certification and display the signature certified “cruelty-free” badge. “Cruelty-free” labeling is not legally regulated, so brands can claim their products are not tested on animals without complying with a set legal definition. Thus, companies that are not independently certified may claim to be cruelty-free without adhering to any specified standard. Oftentimes, such companies state they are cruelty-free because the finished product is not tested on animals, meanwhile they consent to animal testing in China and using raw materials that are tested on animals. Consumers that are not familiar with this distinction may mistakenly purchase a product under the belief that the company is cruelty-free, while the company is not “cruelty-free” under publicly preceded notions.
One method of challenging cosmetic animal testing is by bringing a claim for fraudulent concealment against brands that claim to be “cruelty-free” while still testing on animals in some capacity. In Beltran v. Avon Products, 2012 U.S. Dist. LEXIS 191030, *2, plaintiffs filed suit in California against Avon Products for fraudulent concealment after Avon claimed to be cruelty free while still testing on animals in China. Plaintiffs also alleged violations of California’s Unfair Competition Law, California’s False Advertising Law, and the California Consumers Legal Remedies Act. Avon advertised that they were cruelty-free, and representatives of the company asserted the same to the plaintiffs. Plaintiffs claimed that they bought Avon products under the belief that the brand never tested on animals, and that they would not have purchased the products had they known that the brand conducts animal testing in China. Avon argued that there was no duty to disclose the testing, as they are only required to disclose details related to safety concerns. In an associated action against Estée Lauder, Inc., the court held that plaintiffs had alleged sufficient injury because the purchase of the defendant’s products would not have occurred had the plaintiffs known the product was tested on animals. The product did not have to be defective to constitute fraudulent concealment; merely purchasing it under a material misrepresentation was sufficient injury. The California Central District Court in Beltran found that the plaintiffs had alleged sufficient facts to survive a motion to dismiss and, thus, could proceed with a fraudulent concealment claim. Eventually, however, the case ended when plaintiffs dismissed it with prejudice.
In Herrera v. Estée Lauder Cos., 2012 U.S. Dist. LEXIS 191145, the court held that the plaintiffs’ claims against Estée Lauder were not alleged with sufficient specificity. The court reasoned that the plaintiffs failed to allege with particularity the “who, what, when, where, and how” of the information that misled them. The plaintiffs pointed to a prolonged advertisement campaign with no reference to a specific advertisement, and claimed that a sales representative misled them at some point six years earlier without stating the date or the name of the representative. The court ruled that such allegations were insufficiently specific to meet the Federal Rules of Civil Procedure Rule 9(b) standard and that more information, such as the name of the representative and the specific advertisement at issue, were needed.
While Florida and most other states wait to implement legislation against cosmetic animal testing, beauty companies still have the option to go cruelty-free. A 2016 study conducted in the United Kingdom found that 80% of respondents opposed the use of animal testing in the development of cosmetic products. Activism and consumer push-back against the practice has been on the rise in recent years. In fact, many companies advertise their cruelty-free status as a major selling point of their products. This push-back has contributed to several companies, such as Covergirl and Tresemmé, switching to a new cruelty-free status. Consumer influence plays a major role in how companies decide to operate. However, legislation and executive regulation are essential to create meaningful and long-term impacts on the cosmetic and scientific communities.
The legislature and executive agencies should prohibit the sale of animal-tested cosmetics and regulate medical testing on animals because of the ineffective product development and unnecessary harm it causes to animals. Testing cosmetic ingredients on animals is neither necessary nor legally required; rather, brands elect to do so in order to sell special-use items in the Chinese market. This motivation is purely out of the drive to sell more products. If this were less profitable, these brands would elect to become cruelty-free. This is why consumer awareness of animal testing in cosmetics is crucial, along with governmental enforcement.
Many people don’t know of the reality of animal testing. Some believe animal testing is simply placing lipstick on a cat and then bringing the item to the market. Most people don’t know the truly horrendous, painful, and often life-ending tests that are conducted on animals of all species throughout the country.
As we wait for Florida and other states to ban cosmetic animal testing, the consumer is the most powerful measure against the practice. Raising awareness of what animal testing means and the brands that partake in it is one step in the right direction to a better future for animals. We must choose to be informed about the products we buy and spread awareness to family and friends. Promoting conscious spending on cruelty-free brands is one step in the right direction for making cosmetic animal testing a thing of the past, one purchase and one bill at a time.
 Cruelty Free International, Alternatives to Animal Testing, https://crueltyfreeinternational.org/about-animal-testing/alternatives-animal-testing.
 U.S. Food & Drug Administration, “Cruelty Free”/”Not Tested on Animals” (Feb. 25, 2022), https://www.fda.gov/cosmetics/cosmetics-labeling-claims/cruelty-freenot-tested-animals.
 Leaping Bunny Program, About Leaping Bunny, https://www.leapingbunny.org/about/about-leaping-bunny.
 The Humane Society of the United States, Timeline: Cosmetics Testing On Animals, https://www.humanesociety.org/resources/timeline-cosmetics-testing-animals#1938.
 U.S.D.A. Animal and Plant Health Inspection Service, 2019 Annual Report Animal Usage by Fiscal Year, available at https://www.aphis.usda.gov/animal_welfare/downloads/reports/fy19-summary-report-column-F.pdf.
 The Humane Society of the United States, Cosmetics Testing FAQs, https://www.humanesociety.org/resources/cosmetics-testing-faq#performed.
 The Humane Society of the United States, Animal Testing and Experiments FAQs, https://www.humanesociety.org/resources/animals-used-experiments-faq#what.
 PETA, HUGE News! Cosmetics Regulations in China Just Got More Animal-Friendly (Aug. 24, 2020), https://www.peta.org/blog/new-cruelty-free-china-regulation/.
 Cosmetics Business, Key Changes in China’s New Cosmetics Regulation (CSAR) (Jul. 14, 2020), available at https://www.cosmeticsbusiness.com/news/article_page/Key_changes_in_Chinas_new_cosmetics_regulation_CSAR/167698.
 See PETA, These Beauty Brands Are Still Tested on Animals, https://www.peta.org/living/personal-care-fashion/beauty-brands-that-you-thought-were-cruelty-free-but-arent/; see also Safiya, 15 Non Cruelty-Free Makeup Brands That Still Test on Animals 2022, TheBeautyInsideOut (Mar. 18, 2022), https://thebeautyinsideout.com/non-cruelty-free-makeup-brands/.
 PETA, Top Five Shocking Animal Experimentation Facts (Video), https://www.peta.org/features/top-five-shocking-animal-experimentation-facts/.
 Marlene Cimons, et al., Cancer Drugs Face Long Road From Mice to Men, L.A. Times, May 6, 1998, https://www.latimes.com/archives/la-xpm-1998-may-06-mn-46795-story.html.
 Joyce V.B. Borba, et al., STopTox: An in Silico Alternative to Animal Testing for Acute Systemic and Topical Toxicity, Vol. 130, No. 2, Environmental Health Perspectives (Feb. 22, 2022).
 Aysha Akhtar, The Flaws and Human Harms of Animal Experimentation, Vol. 24, Issue 4, Cambridge Quarterly of Healthcare Ethics 407-19 (Oct. 2015).
 Kathleen N. Morgan and Chris T. Tromborg, Sources of Stress in Captivity, 102 Applied Animal Behaviour Science 262-302 (2007), available at https://doi.org/10.1016/j.applanim.2006.05.032, https://www.sciencedirect.com/science/article/pii/S0168159106001997.
 See note 19.
 See note 21.
 Junhee Seok, et al., Genomic Responses In Mouse Models Poorly Mimic Human Inflammatory Diseases, 110 Proceedings of the National Academy of Sciences (Feb. 26, 2013), available at https://www.pnas.org/doi/10.1073/pnas.1222878110.
 Patience Browne, et al., Screening Chemicals for Estrogen Receptor Bioactivity Using a Computational Model, 49 Environ. Science & Technology 8804-14 (Jul. 21, 2015), available at https://pubs.acs.org/doi/full/10.1021/acs.est.5b02641?casa_token=RwM1IlG5bTgAAAAA%3AOfnpKp6ifUDykP-gL_e6j-z4hRBFvQzAA60w_3-J6pAmMuMvFGvHdOTEK3LIYWdgwn5XyVflk98aEw; Gail A. Van Norman, Limitations of Animal Studies for Predicting Toxicity in Clinical Trials, 4 JACC Basic Transl. Sci. 845-54 (Nov. 25, 2019), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6978558/.
 See Renata Teixeira do Amaral, et al., In Silico Approaches for Safety Assessment of Cosmetic Ingredients: Report for the International Cooperation on Cosmetics Regulation, available at https://www.iccr-cosmetics.org//downloads/topics/2014-07%20-%20in-silico%20approaches%20for%20cosmetic%20product%20safety%20assessments.pdf.
 Mona Zahir, Using Computer Models to Replace Animal Tests for Heart Diseases, Faunalytics (Sept. 2020), available at https://faunalytics.org/using-computer-models-as-animal-replacements-for-heart-disease/.
 Tae-Won Kim, et al., Use of Stem Cells as Alternative Methods to Animal Experimentation in Predictive Toxicology, Regul. Toxicol. Pharmacol. (July 2015), available at https://pubmed.ncbi.nlm.nih.gov/30930176/.
 European Parliament, MEPs Demand EU Action Plan to End the Use of Animals in Research and Testing (Sept. 16, 2021), available at https://www.europarl.europa.eu/news/en/press-room/20210910IPR11926/meps-demand-eu-action-plan-to-end-the-use-of-animals-in-research-and-testing.
 Worldwide Progress, National Anti-Vivisection Society (2022), available at https://navs.org/learn-more/worldwide-progress/.
 Genevieve K. Croft (2022), The Animal Welfare Act: Background and Selected Issues (CRS Report No. R47179), available at https://crsreports.congress.gov/product/pdf/R/R47179.
 7 U.S.C. §2143.
 Harry Clarkson-Bennett, Animal Testing in the USA, Red Orange Peach (Feb. 23, 2022), https://redorangepeach.com/animal-cruelty/testing-in-usa/.
 Protection of Dogs and Cats from Unnecessary Testing Act, S.B. 879, 2022 Leg. (Cal. 2022).
 Cosmetic Animal Testing Act, H.B. 1279, 2022 Leg. (Fla. 2022).
 Humane Cosmetics Act, C.S./S.B. 1718, 2022 Leg. (Fla. 2022).
 See S.B. 1642, 2019 Leg. (Va. 2019), available at https://fastdemocracy.com/bill-search/va/2019/bills/VAB00010184/#actions.
 See S.J. 61, Leg. 2020, (Va. 2020), available at https://fastdemocracy.com/bill-search/va/2020/bills/VAB00015326/.
 See Kelly McCleary, Virginia Bans Testing Cosmetics on Animals, CNN (Mar. 20, 2021), available at https://www.cnn.com/2021/03/20/us/virginia-cosmetics-animal-testing-trnd/index.html.
 See S.B. 540, 2019 Leg. (Md. 2019), available at https://fastdemocracy.com/bill-search/md/2019/bills/MDB00018065/.
 See Julia John, Maryland Bans Animal-Tested Cosmetics (June 2, 2021), available at https://chemicalwatch.com/274592/maryland-bans-animal-tested-cosmetics.
 Leaping Bunny Program, About Leaping Bunny, https://www.leapingbunny.org/about/about-leaping-bunny.
 People for the Ethical Treatment of Animals, PETA’s ‘Global Beauty without Bunnies Program,’ https://www.peta.org/living/personal-care-fashion/beauty-without-bunnies/.
 U.S. Food & Drug Administration, “Cruelty Free”/”Not Tested on Animals,” https://www.fda.gov/cosmetics/cosmetics-labeling-claims/cruelty-freenot-tested-animals.
 See id.; see also People for the Ethical Treatment of Animals, PETA’s ‘Global Beauty without Bunnies Program,’ available at https://www.peta.org/living/personal-care-fashion/beauty-without-bunnies/.
 Beltran v. Avon Products, 2012 U.S. Dist. LEXIS 191030, at *10.
 Id. at *2.
 Id. at *4.
 Id. at *11.
 Id. at *11.
 See Herrera v. Estée Lauder Cos., 2012 U.S. Dist. LEXIS 191145.
 Id. at *7.
 Beltran, 2012 U.S. Dist. LEXIS 191030 at *14.
 See generally Herrera.
Herrera, 2012 U.S. Dist. LEXIS 191145 at *12.
 Id. at *13.
 Id. at *14.
 See generally Herrera.
 Gov.uk, Statistics of Scientific Procedures on Living Animals, Great Britain 2016 (July 13, 2017), https://www.gov.uk/government/statistics/statistics-of-scientific-procedures-on-living-animals-great-britain-2016.
This column is submitted on behalf of the Animal Law Section, Michelle Ballard, chair, and Ralph A. DeMeo, editor, and Macie J. H. Codina, special editor.