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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.
Disclaimer: This Alert has been
prepared and published for informational purposes only and is not
offered, nor should be construed, as legal advice. For more
information, please see the firm’s
full disclaimer.
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