The oft-used claim falls under "compliance with legal requirements" in regards to the European Commission's Common Criteria since the animal testing ban's inception
Cosmetics Europe states that the claim "Not tested on animals" is now obsolete under the EU Cosmetic Products Regulation (EC) N°1223/2009.The European Commission (EC), as the governing body of the EU cosmetics regulation, provides a Common Criteria that is a "mandatory and legally binding EU text that supersedes any diverging national requirements" for manufactures and brand owners to adhere to when looking to use on-pack marketing claims.
The aim of the Common Criteria is principally to protect end users of cosmetic products from misleading claims and is composed of six areas:
...such a claim would describe a legal requirement and therefore would not be in conformity with the criteria
Cosmetic product claims should convey explicitly or implicitly product characteristics or functions of cosmetic products and are essential to:
help consumers/users choose a product;
In the EU, cosmetic product claims are subject to a multiple set of horizontal as well as sector-specific rules that apply concurrently to protect the consumer from misleading practices and to promote fair competition.
Art.20 (1) of the Regulation states: “In the labelling, making available on the market and advertising of cosmetic products, texts, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have”.
However, the Criteria also states under the Legal Compliance section that "The claimed benefits for a product must go beyond mere compliance with legal requirements." As the Cosmetics Regulation has established a prohibition to test finished cosmetic products and cosmetic ingredients on animals (since 11 September 2004), and a prohibition to market in the European Union finished cosmetic products and ingredients included in cosmetic products which were tested on animals for cosmetics purposes (since 11 March 2009), the claim "Not tested on animals" now falls under "compliance with legal requirements" and thus has become an obsolete marketing angle.
Florian Schellauf, Issue Manager of Technical Regulatory Affairs at Cosmetics Europe, says, "the European Commission issued a recommendation on the correct use of such claims ["Not tested on animals"] a couple of years ago. This recommendation is now indeed obsolete and it is planned that it will be repealed in the near future. So, in principle such a claim would describe a legal requirement and therefore would not be in conformity with the criteria."
By 11 July 2016, the European Commission shall submit to the European Parliament and the Council a report regarding the use of claims on the basis of the common criteria. If the report concludes that claims used in respect of cosmetic products are not in conformity with the common criteria, the EC shall take appropriate measures to ensure compliance in cooperation with the Member States.