SB 1249: First-in-nation animal testing ban for cosmetic products

The California Legislature lived up to its reputation in 2018 as a trend-setting state by passing a first-in-nation law that, come Jan. 1, 2020, will ban the sale of cosmetic products if the products or the ingredients therein had been tested on animals.

Senate Bill 1249 (Galgiani) -- also known as the Cruelty Free Cosmetics Act -- was driven by Social Compassion in Legislation, Physicians Committee for Responsible Medicine, and other animal welfare groups. Although the cosmetics industry and other industry trade associations strongly opposed SB 1249 upon its introduction in early 2018, the bill received very little attention until later in the legislative session, when it quickly developed into one of the most controversial and heavily lobbied bills of 2018.

The basis for the controversy centered around two fundamental provisions, which remained in the bill until the final days of the legislative session. First, SB 1249 would have extended beyond the cosmetic supply chain by banning the sale of a cosmetic product in the state of California if the cosmetic product or the ingredients therein were tested on animals for any purpose. Consequently, a cosmetic product would have been banned from sale if an ingredient therein had been tested on animals for an unrelated purpose outside the cosmetic product manufacturer's knowledge or control. Second, SB 1249 would have provided that cosmetic products would not be subject to the ban if such products were sold in a country that requires cosmetic products to be animal tested as a condition for sale in that country. This is often referred to as the "China exemption" because China is the largest country with such a policy. The bill, however, would have sunset the "China exemption" in 2023, meaning come that time, a cosmetic manufacturer could not sell its products in both California and China, assuming China's animal testing policy was still in effect in 2023.

These two provisions, according to the cosmetics industry, rendered the bill unworkable. After extensive negotiations, however, the cosmetics industry and the bill's sponsors were able to strike a deal, which more closely aligns with but goes even further than the European Union's animal testing ban. In its final form, SB 1249 limits the sales ban to instances in which the cosmetic product or an ingredient therein had been tested on animals by the manufacturer, the manufacturer's contractor, or any supplier of the manufacturer. SB 1249 also contains several exemptions, including an exemption if an animal test was conducted on a cosmetic product to comply with a requirement of a foreign regulatory authority, so long as no evidence derived from the test was relied upon to substantiate the safety of the cosmetic for purposes of sale in California. SB 1249 does not contain a private right of action, but can be enforced by local city or district attorneys. And finally, SB 1249 grandfathers in cosmetic products and ingredients that were sold in California or tested on animals prior to Jan. 1, 2020.

Like many California laws, SB 1249 is the strictest and most comprehensive animal testing legislation in the country and thus will surely serve as a model for animal testing bans in other states and on the federal level.