On October 7, 2005, Gov. Arnold Schwarzenegger signed the California Safe Cosmetics Act of 2005, which imposes disclosure requirements on companies selling cosmetic products within California.

This legislation was proposed by Senator Carole Migden (D-San Francisco) in response to concerns that some cosmetic products contain substances known or suspected to cause cancer and reproductive toxicity that can harm the mother, fetus, and nursing children. Beginning January 1, 2007, manufacturers of any cosmetic product sold within California must provide the State Department of Health Services (DHS) with a list of its cosmetic products that are sold in the state and that contain any ingredient that is a chemical identified as causing cancer or reproductive toxicity. This ingredient identification requirement applies to: (1) any chemical contained in the product for the purposes of fragrance or flavoring; and (2) any chemical identified by the phrase "and other ingredients" and determined to be a trade secret pursuant to Part 20 and Section 720.8 of Part 720 of Title 21 of the Code of Federal Regulations. However, ingredients that are "incidental," as defined in federal regulations, need not be identified to DHS.

In addition, the California Safe Cosmetics Act authorizes DHS to investigate any cosmetic product that contains chemicals known to cause cancer or birth defects. DHS may require manufacturers subject to investigations to submit relevant health effects data and studies. If DHS determines that an ingredient in a cosmetic product is potentially toxic at the concentrations present in the product or under the conditions of use, it will refer its findings to the Division of Occupational Safety and Health in the Department of Industrial Relations and the Office of Environmental Health Hazard Assessment so that they can determine the need to establish new occupational safety standards.

Finally, citing an analysis by the Environmental Working Group (a nonprofit organization) that 54 cosmetic products violate the Cosmetic Ingredient Review’s (CIR) safe use recommendations for manufacturers by containing an ingredient that the CIR has concluded is not safe for the product’s specific use, the California Safe Cosmetics Act permits DHS to investigate, when resources are available, whether such cosmetics have been adequately substantiated for safety. If it finds that the cosmetic has been adequately substantiated for safety, DHS may then determine whether the cosmetic contains an ingredient that the CIR has found is not safe for the specific use indicated on the product’s label. DHS will refer any findings that a product contains an ingredient that the CIR has concluded is not safe to the Attorney General and the federal Food and Drug Administration for possible enforcement action.

Any person who violates these provisions is subject to civil penalties under the Sherman Food, Drug, and Cosmetic Law, including imprisonment and fines. DHS may assess a civil penalty of up to one thousand dollars for each day that the violation continues.

Should you have any questions concerning the California Safe Cosmetics Act of 2005, please contact:

Georgia Ravitz
202-857-8939
ravitz.georgia@arentfox.com