On March 16, 2021, Virginia became the fourth state—following California, Nevada, and Illinois—to enact legislation banning the testing of cosmetics on animals and the sale of cosmetics that have been tested on animals. Similar legislation may follow in other states, and Representative Don Beyer of Virginia has indicated he intends to reintroduce federal legislation to establish this ban nationwide.

From a defense perspective, whenever a cosmetic product company is sued in a product liability lawsuit, it is helpful to have a strong record of safety testing in order to demonstrate that the company engaged in a rigorous safety assessment of the product. For many companies, animal testing has been part of that process. As more jurisdictions enact such bans on animal testing, companies—and the lawyers that defend them—will want to adjust to ensure that there is still a sufficiently strong safety assessment record to withstand the challenges argued by plaintiff’s lawyers in product liability lawsuits.

In addition, to the extent that anti-animal testing legislation may represent a growing public sentiment against such testing, defense lawyers may wish to consider whether, and to what extent, the use of evidence of prior safety studies involving animals—when it is still applicable to a particular product—might be counterproductive in the eyes of the jury. In other words, while the use of such safety studies might be good evidence to show that the company took safety seriously and that the product at issue did not cause the kind of harm alleged by a plaintiff, if the jury is otherwise upset about the use of animal testing, it is possible that the jury might overlook the reasons why the defense presented the evidence and instead view the company in a negative light. This could, unfortunately, contribute to an overall negative emotional reaction by the jury to the defendant, which obviously does not help in persuading the jury to reach a defense verdict.

While a fuller exposition of this potential is beyond the scope of this post, good trial lawyers understand the complexities of choosing not only what evidence to present at trial, but also how that evidence may impact the jury’s decision on a number of levels. As more jurisdictions enact animal-testing bans, the direct and indirect implications of such efforts is yet one more thing that defense lawyers and their clients should bear in mind when defending cosmetic product liability lawsuits.