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Combining Reflexive Law and False Advertising Law to Standardize “Cruelty-Free” Labeling of Cosmetics

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Combining Reflexive Law and False Advertising Law to Standardize “Cruelty-Free” Labeling of Cosmetics \\server05\productn\N\NYU\81-1\NYU113.txt unknown Seq: 1 21-MAR-06 13:04 COMBINING REFLEXIVE LAW AND FALSE ADVERTISING LAW TO STANDARDIZE “CRUELTY-FREE” LABELING OF COSMETICS DELCIANNA J. WINDERS* “Cruelty-free” labeling claims are presently unregulated, resulting in market failure. Consumers make purchasing decisions with incomplete and misleading informa- tion and are therefore unable to encourage manufacturers to follow consumer pref- erences and alter their animal testing practices. Building on scholarship in reflexive law, this Note outlines a strategy for remedying the proliferation of misleading “cruelty-free” claims through standardization. Winders argues that standardization can most effectively and efficiently be achieved through a voluntary, third-party certification program that sets a labeling standard and then monitors labeling claims, buttressed by traditional false advertising law. INTRODUCTION Every year tens of thousands of nonhuman animals1 are tortured and killed in the United States to test cosmetics, despite the existence of many effective nonanimal testing procedures. Two animal tests used for cosmetic products are the Draize eye and skin irritancy tests.2 The Draize eye irritancy test usually uses rabbits because they are docile, their eyes are much more sensitive than human eyes, and they are unable to tear, which can wash away the test substance. Typically, * Copyright 2006 by Delcianna J. Winders. J.D. Candidate, 2006, New York Univer- sity School of Law. B.A., 2000, University of California, Santa Cruz. My appreciation goes to Professor Katrina Wyman for her steadfast support of my scholarship and her critically helpful comments as I developed this Note. I would also like to thank Professor Richard Stewart for providing solid feedback. I am grateful for the tireless efforts of the editors of the New York University Law Review, especially Billy Wailand, Alex Guerrero, Ben Huebner, Joi Lakes, and Taja-Nia Henderson. Special thanks go to Christopher Murell for willingly critiquing this piece at every juncture of its evolution, and to my family for their steadfast support. Finally, I would like to thank Carter Dillard, whose tireless litigation and innovative scholarship combining false advertising law and animal protection concerns inspired this Note. 1 Throughout this Note I will use the term “nonhuman animals” to draw attention to the fact that humans are animals and an unscientific human/animal dualism has often oper- ated to subordinate nonhuman animals. See Paul Waldau, Will the Heavens Fall? De-Radi- calizing the Precedent-Breaking Decision, 7 ANIMAL L. 75, 94–95 (2001). 2 See Megan Erin Gallagher, Student Article, Toxicity Testing Requirements, Methods and Proposed Alternatives, 26 ENVIRONS ENVTL. L. & POL’Y J. 253, 258 (2003); Stacy E. Gillespie, Casenote, A Cover-Girl Face Does Not Have to Begin with Animal Cruelty: Chapter 476 Gives Legal Force to Alternative Testing Methods, 32 MCGEORGE L. REV. 461, 464 (2001). 454 \\server05\productn\N\NYU\81-1\NYU113.txt unknown Seq: 2 21-MAR-06 13:04 April 2006] STANDARDIZING “CRUELTY-FREE” LABELS 455 a young rabbit is tightly restrained in a box so that he is unable to move his neck or rub his eyes with his paws. Clips sometimes hold his eyelids open. Anesthesia is not generally administered. A researcher applies a concentrated substance to the outer layer of the eye—one of the most sensitive parts of the body—and observes it over a span of days or weeks for responses such as blindness, bleeding, hemor- rhaging, and ulceration.3 For the skin irritancy test, a researcher shaves and often abrades a rabbit’s skin. To abrade the skin, adhesive tape is repeatedly applied and ripped off until several layers of skin are exposed. The researcher then applies a highly concentrated test substance to the raw area over a period of days or weeks and observes it for corrosion, weeping, inflammation, and other forms of irritation.4 At the end of both tests, the rabbits are generally killed.5 Given the suffering and death intrinsic to these procedures, the existence of many cosmetic ingredients that are known to be safe, and the availability of nonanimal testing methods, many consumers con- sider the testing of cosmetics on nonhuman animals unnecessary and prefer not to support it. However, because “cruelty-free” claims are not standardized, consumers are often unable to make purchasing decisions that truly reflect their opposition to animal testing. The European Union has passed a directive banning the testing of cos- metics on nonhuman animals and the marketing of products so tested.6 Meanwhile, the United States—the largest user of laboratory animals in the world7—lags behind, with consumers often unable even 3 DEBORAH RUDACILLE, THE SCALPEL AND THE BUTTERFLY: THE WAR BETWEEN ANIMAL RESEARCH AND ANIMAL PROTECTION 160 (2000); Gallagher, supra note 2, at 258. R 4 Gallagher, supra note 2, at 258. R 5 Id. 6 The Seventh Amendment to the Cosmetics Directive bans the testing of finished cosmetic products within the European Union (EU) and the marketing of cosmetic prod- ucts and ingredients tested on nonhuman animals outside the EU where validated alterna- tive tests exist. Council Directive 2003/15, art. 1, 2003 O.J. (L 66) 26, (EC) (amending Council Directive 76/768, 1976 O.J. (L 262) 169 (EEC)) (effective Sept. 2004). Beginning in 2009, the amendment will additionally prohibit the marketing of cosmetic products and ingredients tested on nonhuman animals regardless of the availability of alternatives. Id. Given this lengthy phase-in period, there is still an important role for standardized “cruelty-free” labeling in the European Union to meet consumer demand. Press Release, British Union for the Abolition of Vivisection, Beauty Without Cruelty Approved by Int’l Humane Cosmetics Standard (Nov. 25, 2004), available at http://www.buav.org/press/2004/ 11-25.html (noting that until ban goes into effect, it is up to consumers to identify genu- inely “cruelty-free” products). The European Commission is accordingly formulating rele- vant guidelines. E-mail from Paul A. Shotton, European Parliamentary Officer, European Coal. to End Animal Experiments, to Delcianna J. Winders (Dec. 15, 2004) (on file with the New York University Law Review). 7 RUDACILLE, supra note 3, at 303. Because the federal government tracks only the R number of cats, dogs, primates, rabbits, guinea pigs, hamsters, and farm animals used in testing, ANIMAL & PLANT HEALTH INSPECTION SERV., U.S. DEP’TOF AGRIC., ANIMAL \\server05\productn\N\NYU\81-1\NYU113.txt unknown Seq: 3 21-MAR-06 13:04 456 NEW YORK UNIVERSITY LAW REVIEW [Vol. 81:454 to purchase products free of animal testing. For those concerned about animal testing, this state of affairs is unacceptable. Even those not particularly concerned about animal testing themselves can recog- nize the importance of a consumer’s right to choose and to not be deceived. This Note explains the problems presented by the lack of a legal definition of “cruelty-free” and demonstrates how a substantive stan- dard can be implemented through a combination of false advertising law and reflexive law. Reflexive law encompasses a variety of regula- tory approaches external to traditional command-and-control mecha- nisms. Reflexive law tools include warning labels, environmental impact statements, and, particularly relevant to this Note, third-party certification of labeling claims. These tools aim to influence market behavior by collecting and disseminating information. Through dis- closure, reflexive law aims to promote the internalization of costs: When consumers become aware of the harmful effects—to themselves or to others—of a particular product (or some aspect of that product’s development), they can express their concerns about those effects through their purchasing habits. Manufacturers, in turn, can respond to this expression by altering their practices. Because reflexive law regulates largely outside of formal legal systems, parts of the analysis in this Note are somewhat nontradi- tional. However, reflexive law is an increasingly important field of legal scholarship, and analyses situating its emerging mechanisms within formal legal systems are crucial. Toward this end, this Note argues that at present a voluntary, third-party certification program that sets a labeling standard and then monitors labeling claims is ideal, and that this program should be buttressed by traditional false adver- tising law. CARE REPORT 2 (2004), available at http://www.aphis.usda.gov/ac/awreports/awreport2004. pdf (listing data for only these nonhuman animals), and because rats, mice, and birds—the vast majority of nonhuman animals used in testing—are excluded from the federal Animal Welfare Act as it pertains to research, reliable data on the total number of animals used is unavailable. Animal Welfare Act, 7 U.S.C. § 2132(g) (2000) (listing nonhuman animals covered by Act); Animal Welfare, 9 C.F.R. § 1.1 (2005) (excluding rats, mice, and birds from definition of “animals” covered by Act). One author estimates that almost fourteen million nonhuman animals were used in laboratory testing in the United States in 1998. RUDACILLE, supra note 3, at 303. However, statistics are not kept based on the use of the R nonhuman animals, so it is unclear how many nonhuman animals are used to test cos- metics. In 1995, the Massachusetts Society for the Prevention of Cruelty to Animals esti- mated the number of nonhuman animals used to test personal care products in the United States to be about 50,000. “Cruelty-Free” Labeling: What Does it Mean?, ISSUES & ANSWERS (Mass. Soc’y for the Prevention of Cruelty to Animals, Ctr. for Lab. Animal Welfare), May 1995, at 1, 2, available at http://www.mspca.org/site/pp.asp?c=gtIUK4OSG& b=127058. \\server05\productn\N\NYU\81-1\NYU113.txt unknown Seq: 4 21-MAR-06 13:04 April 2006] STANDARDIZING “CRUELTY-FREE” LABELS 457 Part I of this Note provides an overview of the problem, intro- ducing animal testing of cosmetics and the current meaninglessness of “cruelty-free” labels.
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