Animals Protection Bill (PMB): Adv S Swart (ACDP) briefing; with Minister

Meeting report

Opening Remarks by the Chairperson

The Chairperson said the drive to criminalise and prohibit the testing of cosmetic products on animals was underpinned by our responsibility to protect the most vulnerable. As President Nelson Rolihlahla Mandela said, “there can be not keener revelation of a society’s soul than the way in which it treats its ‘most vulnerable”.

That was a course that President Mandela had not only believed in but one which he had championed as the patron of the National Society for the Prevention of Cruelty to Animals (SPCA). That came as no surprise because the President had spent his formative years as a cattle herder in rural Transkei. He further extended this commitment to the preservation of wildlife during his term as the President of the Republic. He was instrumental in creating the trans-border national parks that facilitated the movement of wildlife across borders, especially between South Africa and Mozambique.

It was pleasing that that progressive piece of legislation was before the Committee for a positive contribution to upholding South Africa's position as a progressive advocate for animal rights. In so doing, concrete steps were being taken to advocate for the protection of animals and to prevent any cruelty and trauma to animals, because of testing cosmetics, foodstuff, and disinfectants. 

As it stands, more than 100 million animals are used in research and testing worldwide each year, including around 4 million animals in the United Kingdom for testing procedures. Those exposed the animals to pain, suffering, and side effects that could be severe. It was also estimated that it was first in the top ten animal testing countries in the world with 20.5 million animals tested, followed by the United States of America at 15,6 million, Japan at 15 million, Canada at 3.6 million, Australia at 3.2 million, South Korea at 3.1 million, the United Kingdom at 2.6 million, Brazil at 2.2 million, Germany 2 million and France at 1.9 million. Internationally, 42 countries have passed laws to limit or ban cosmetics animal testing, including every country in the European Union, Australia, Colombia, Ecuador, Guatemala, Iceland, India, Mexico, New Zealand, Norway, Korea, Switzerland, Taiwan, and several states in Brazil. There was a duty to protect the most vulnerable in society as the Committee had a constitutional obligation to protect the environment, which extended to flora and fauna.

That responsibility could only be effected by the comprehensive legislation and legislative response to prohibit the testing on animals as a means to prevent trauma, pain, and suffering of animals. There was a duty to follow in the footsteps of the founding father of South Africa's democracy, President Mandela, and uphold his good example as the National patron of the SPCA. Therefore, the Committee welcomed the presentation.

Briefing on the Animals Protection A/Bill

Mr Steve Swart (ACDP) said the Bill was a progressive one. The object of the Bill was to amend two Acts (the Animals Protection Act, No. 71 of 1962 and the Foodstuffs, Cosmetics, and Disinfectants Act, No. 54 of 1972), which had intended to: prohibit the sale and manufacturing of cosmetics that were tested on animals in the Republic and criminalise the testing of cosmetics on animals. The narrow ambit was to prohibit testing, manufacturing, and selling goods tested on animals in the Republic of South Africa.

In terms of procedure, the Bill was published in the Government Gazette 43702 on 11 September 2020 as a Private Member's Bill, with an invitation for public comment.

2 383 public submissions were received by Parliament on the Bill, including submissions from many organisations. Of the 2 383 submissions, 1 311 were in support, while 1 052 had supported the Bill but wanted more protection for the animals. Of the seven who had opposed the Bill, only one had a real objection – with others more against animal legislation in general. In addition, the Dear South Africa website showed 5 110 people in support of the Bill, 508 said the Bill had not gone far enough in protecting the animals, and 91 were against it.

Due to the nature of the Bill, all the submissions would need to be referred to the Committee for consideration, in line with the rules of the National Assembly.

South Africa needed to improve the protection measures of animals in the country, as the country sadly scored an “E” on the World Animal Protection Index.

As things stood, cosmetic testing on animals did not take place in South Africa. The Bill was being introduced to align the country with its global counterparts taking a stand against animal cruelty.

The local courts - Cameron JA in a minority judgment in the case of NCSPCA v Openshaw [2008] ZASCA 78 - had also made a stand, noting that the Animals Protection Act, 1962, may not be conferring rights on animals, but it was designed to promote their welfare and it recognised that animals were sentient beings that were capable of suffering and of experiencing pain.

Another Supreme Court ruling reminded South Africa that: ‘the duty resting on us to protect and conserve our biodiversity is owed to present and future generations. In so doing, we will also be redressing past neglect. Constitutional values dictate a more caring attitude towards fellow humans, animals, and the environment in general.'

An important aspect that needed to be borne in mind by the Committee was that a culture of caring for and protecting animals had significant benefits for the well-being of society. Many studies have shown that efforts to reduce cruelty to animals were likely to reduce interpersonal violence in communities (Regan Jules-Macquet BA, De Rebus June 2014). That was clearly a benefit to our communities, ravaged by high levels of Gender-Based Violence.

Although the people of South Africa, and indeed our highest courts, recognised the plight of animals and the need to protect them from abuses by humans, some practices persisted globally:

Animal tests for cosmetics included rubbing substances into their shaved backs, dripping substances into their eyes, and painting substances into their ears. Other tests involved forced inhalation of substances and force-feeding at levels that caused illness or death. If those animals did not die during testing, they were subsequently killed. That was a great pain. There, however, was a global move to not rest cosmetics on animals; it was now a common practice not to test those ingredients on animals.

The Bill in its nature was small, and it sook to create a new offense related to:

1.  the testing of a cosmetic product on animals, although there are no laboratories in South Africa – as it stands – that provide for testing of cosmetic products on animals. 
2. the Foodstuffs, Cosmetics, and Disinfectants Act, 1972 (Act No. 54 of 1972), to create an offense for the selling or manufacturing of a cosmetic that has been tested on an animal in the Republic. This Act is amended by way of a Schedule as it is administered by the Department of Health. 

Section 1 of the Bill provided a comprehensive definition of what a ‘cosmetic’ was.

Whilst Section 2, sub-section (1)(A), provided that the “testing, on an animal, of an ingredient that may be included in a cosmetic, shall not constitute an offense where that testing had been for a purpose unrelated to the use of that ingredient in a cosmetic''. Such could include testing for medicinal use, which was a stipulated exception in the Bill.

The Bill did not hold any financial implications for the State. There were existing structures already in place that inspected the welfare of animals with various institutions.

In closing, on 23 January 2023, the Cape Animal Welfare Forum, representing 45 member organisations, expressed strong support for the Bill:

 “Cape Animal Welfare Forum called upon all political parties represented in Parliament to support the Animals Protection Amendment Bill. It had been proven beyond doubt that the toxicity testing of grooming products or ingredients therein on animals served no benefit to humans. That Animals Protection Amendment Bill should be uncontroversial, as there would be no negative impact on any individuals or companies.”

Input by Parliament Legal Services

Adv Charmaine van der Merwe, Senior Parliamentary Legal Advisor, said the Bill had been considered for constitutionality and there were no adverse findings that constitutionally spoke against the Bill. There were also no findings on the implementation issues or clashes with other legislation in the statutes book. Legally there were no objections to the Bill; it was purely a matter of policy.

Discussion

Ms M Tlhape (ANC) welcomed the Bill and noted the interesting remarks made on the importance of animal protection. The objectives of the Bill had been noted, which begged the questions:

• How would the proposed amendments impact animal welfare in South Africa?
• What were the potential implications of those proposed amendments for cosmetics and pharmaceuticals in South Africa?
• How would the proposed amendments impact the development and innovation of cosmetic products in the country’s market?
• Were any steps taken to mitigate any of the negative effects on innovation due to the Bill?
• Were there any concerns expressed by the stakeholders towards the development of the Bill, and if so, how were those concerns addressed?
• Noting the high levels of high unemployment and poverty, how would the Bill create and preserve jobs in the industry that relied on animal testing for cosmetic products?
• Was there a possibility that the Bill could lead to the closure of certain businesses? If so, what was the plan to address those potential losses? Moreover, had alternative testing methods been considered, and could such adaptations lead to job creation in such fields?

Mr N Masipa (DA) asked if the Animal Welfare Bill had been considered in the making of the amendment of animal testing.

Mr N Capa (ANC) said it seemed in the presentation that there was a continuous absence of the United States of America as they were notorious for ignoring the trends of the rest of the world.

How was the relationship between the two extremes of those who completely agreed with the Bill and those who opposed it completely?

The research institutions were better suited to understand all the implications related to animal testing. Were there alternatives provided to those research institutions, as one could not ignore the fact that research needed to be undertaken?

Ms T Breedt (FF+) said as a make-up-wearing constituent in the Committee, she had initiatives in animal welfare. Perhaps the Committee had set the tone for reconsidering the previous talks between 2021-2022 for a welfare colloquium between the Committee of Land and Agriculture, and the Department of Forestry, Fisheries and the Environment.

The presenter made mentioned a comparison made by a Non-Governmental Organisation between legislation internationally and locally. Had that been distributed to the Department, considering that the Department was in the process of amending the Animal Welfare Bill?

Regarding the description of animals, the Animal Protection Act currently does not offer protection to rats, mice, rabbits, and guinea pigs. Those animals were the common species usually used in laboratories for cosmetic research. Had there been a consideration to include all animals in that proposed Bill?

On trade, would the Bill speak to products imported and tested overseas on animals? Would those be considered? South Africa would not be at the forefront of animal rights protection and legislation purporting that, whilst having animal-tested products imported.

On the drafting of the new Animals Protection Act, there appeared to be a tender out for that. Why was the Department going for a new tender if, in previous meetings, it had been said that the Department had working committees and groups that could do the function of drafting?

Inkosi R Cebekhulu (IFP) followed Mr Capa’s sentiments and said for medicines to be found suitable for healing, research was done on animals. What was the Bill's position on finding more medicines that extended life to animals through testing?

Ms N Mahlo (ANC) said the Bill sounded good as presented. How would the Animals Protection Amendment Bill impact the South African international trade relations with the countries that allowed animal testing? Moreover, what strategies were being developed to address any potential conflict in that regard?

What were the benefits of banning the testing for cosmetics on animals on the exports in South Africa? How would South Africa's economic growth be affected?

Mr M Montwedi (EFF) said that the animals had experienced a form of cruelty, and he commended the Bill for being proactive.

The Chairperson enquired about what measures were in place to ensure compliance with the Amendment Bill by the cosmetics industry, how would that be enforced, and what penalties would be imposed for non-compliance.

Were there any concerns about potential contributions between the proposed amendments and the existing regulations?

Responses

Mr Swart, answering on the impact of the proposed amendment on animal welfare, said the belief was that the international index would be improved internationally and in society. It was important to note that an exemption had been built in that regard, that applied only to animal testing for cosmetic products and nothing else. Whilst South Africa had laboratories that tested on animals for pharmaceutical purposes, non-currently existed for cosmetic use and products. The Bill was narrow as it only related to cosmetic products.

As mentioned by the Member who identified as a makeup-wearing constituent, more and more makeup users were leaning towards the trend of using beauty products that had not been tested on animals, and malls all over the country imported international cosmetics that had not made use of product testing on animals.

The Bill at this stage was not seeking to ban the importation of cosmetics that had been tested on animals, as it would significantly impact businesses and international trade obligations. Whilst it may be desirable to do so, at that stage, the Bill was narrow in that it was imposing a ban on animal testing in South Africa and the production of such cosmetics products.

Due to the narrow scope of the Bill, it was not expected to negatively affect the prospects of economic growth.

Now the ban was not expected to affect any jobs; instead, data from the European Union showed that the ban fostered a scope for growth in alternative testing and non-animal testing means, which encouraged job creation.

The Animal Welfare Bill was likely to take some time, whilst the Animal Testing Bill was narrow and was likely to be passed quickly with minimal controversy. Joining that Bill with the Animal Welfare Bill could take a longer time to pass.

The overwhelming submissions supported the Bill, and those that were against the Bill had expressed concern over more pertinent issues such as the termination of pregnancies and other violations. Whilst those concerns were legitimate, they were not supposed to stand in the way of protecting animals.

The aspect of including all animals in the definition of animals was an important consideration to make.

Adv van der Merwe said the Bill started broadly, as it dealt with strengthening the powers of the SPCA to Animal inspectors and, at some point, focused on circus animals. The Bill was then adjusted to focus on animal testing. When the Bill lapsed at the dissolution of the fifth Parliament, it was streamlined. The legal services and the Department were aware of the review of the Department's welfare legislation.

The legal services assisted the Members of Parliament with developing Bills but did not inform the policy. The Bill did not remedy the existing legislation. Instead, it filled a gap.

The problem that faced the Members when they approached the legal services was that no drafted legislation could be used for comparison. The Department could have something written to present to the Committee on that Bill. However, it was an internal document at that stage as it had not been brought to Parliament. At that point, the Department was the only one that knew whether that proposed Bill was a duplication.

At that stage, the Committee was to assess the desirability of the Bill; if the Bill was found to not be desirable, that would be the end of the Bill. If, however, the Committee considered the Bill desirable, the Committee would have to consider if it would have to include the products that had been tested abroad. As well as make considerations on the existing definition of animals to include mice, guinea pigs, rats, and rabbits. That could be done at a later stage after that Bill had been passed.

Further discussion

Mr Capa questioned the urgency of that Bill. Why could it not be incorporated into the Animal Welfare Bill that was under consideration, and why was it a standalone Bill? Was it purely because there was a sense that the Animal Welfare Bill would take longer to pass?

Mr Swart, in response, highlighted that that was a pre-emptive Bill, to prevent any laboratories that could apply to have testing laboratories in South Africa. It was also important for improving the international index of South Africa regarding how it treated animals. Whilst the comment about incorporating the ambit of the Bill to the Animal Welfare Bill was sensible, it was important to understand that the Animal Welfare Bill might not be brought to Cabinet anytime soon as it had already been in consideration for the past ten years.

In closing, the Chairperson remarked that the Department of Agriculture, Land Reform, and Rural Development would be afforded an opportunity to come before the Committee on 24 February 2023 to give responses to the Bill.

Meeting adjourned.