New York Bans Animal Testing on Cosmetics

By Ethan Feldman and Kelly Bonner

On January 1, 2023, New York became the tenth state to ban the sale of cosmetics tested on animals.

The New York Cruelty Free Cosmetic Act (“NYCFCA”), which took effect on January 1, 2023, prohibits manufacturers from importing for profit, selling, or offering to sell any cosmetic or ingredient in the state for which the manufacturer knew or reasonably should have known that animal testing was performed by or on behalf of the manufacturer, or manufacturer’s supplier, if the animal testing was conducted after January 1, 2023.

The NYCFCA adds a new section to New York’s General Business Law, Section 399-AAAA, and defines “animal testing” as “the internal or external application of a cosmetic, either in its final form or any ingredient thereof, to the skin, eyes, or other body part of a live non-human vertebrate.

The NYCFCA authorizes the attorney general to bring an action or special proceeding against any manufacturer for violating the act, and issue fines of up to $5,000 for the first violation, including additional fines of $1,000 per day for continuing violations.

The NYCFCA permits the sale of existing cosmetics for which animal testing occurred prior to January 1, 2023.

The act also exempts cosmetics (1) for which animal testing is performed as required by any state or federal agency for the purposes of evaluating a substantiated, specific human health problem related to that cosmetic and for which there are no other feasible means of testing; (2) as a requirement of any regulatory agency of a foreign jurisdiction, provided that the testing results are not used to substantiate the safety of a product sold in New York; or (3) are considered drugs or devices pursuant to 21 U.S.C. Subchapter V.  These exemptions are important for companies that manufacture cosmetics intended for use around the eye, such as mascaras, or intended for sale in jurisdictions which still require animal testing, such as China, which is in the process of relaxing their regulations requiring animal testing.

New York joins California, Nevada, Illinois, Hawaii, Maryland, Maine, New Jersey, Virginia, and Louisiana in prohibiting animal testing on cosmetics.  And while the recent Modernization of Cosmetics Regulation Act (“MCRA”), passed as part of Congress’s year end appropriations bill, on December 23, 2022, did not expressly prohibit the use of animal testing, it stated:  “[i]t is the sense of the Congress that animal testing should not be used for the purposes of safety testing on cosmetic products and should be phased out with the exception of appropriate allowances.”

Cosmetic manufacturers doing business in New York should ensure that their testing practices adhere to recent state law and regulations with respect to products offered for sale in 2023.  Additionally, manufacturers operating in other states should remain alert, as this legislative trend is expected to continue.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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