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California Bans Toxic Chemicals in Cosmetics

On September 30, 2020, California Governor Gavin Newsom signed two pieces of legislation that place dramatic restrictions on companies selling cosmetics and personal care products in California.

Assembly Bill 2762

AB 2762 was introduced by Assemblymember Al Muratsuchi. The legislation prohibits 24 ingredients — 13 per- and polyfluoroalkyl substances (“PFAS”) and 11 other chemicals — from being used in cosmetics in California starting January 1, 2025. Specifically, the bill would ban the following chemicals:

  1. Dibutyl phthalate (CAS no. 84-74-2).
  2. Diethylhexyl phthalate (CAS no. 117-81-7).
  3. Formaldehyde (CAS no. 50-00-0).
  4. Paraformaldehyde (CAS no. 30525-89-4).
  5. Methylene glycol (CAS no. 463-57-0).
  6. Quaternium-15 (CAS no. 51229-78-8).
  7. Mercury (CAS no. 7439-97-6).
  8. Isobutylparaben (CAS no. 4247-02-3).
  9. Isopropylparaben (CAS no. 4191-73-5).
  10. m-Phenylenediamine and its salts (CAS no. 108-45-2).
  11. o-Phenylenediamine and its salts (CAS no. 95-54-5).
  12. The following (PFAS) and their salts:
    1. Perfluorooctane sulfonate (PFOS); heptadecafluorooctane-1-sulfonic acid (CAS no. 1763-23-1),
    2. Potassium perfluorooctanesulfonate; potassium heptadecafluorooctane-1-sulfonate (CAS no. 2795-39-3),
    3. Diethanolamine perfluorooctane sulfonate (CAS 70225-14-8),
    4. Ammonium perfluorooctane sulfonate; ammonium heptadecafluorooctanesulfonate (CAS 29081-56-9),
    5. Lithium perfluorooctane sulfonate;
    6. lithium heptadecafluorooctanesulfonate (CAS 29457-72-5),
    7. Perfluorooctanoic acid (PFOA)(CAS no. 335-67-1),
    8. Ammonium pentadecafluorooctanoate (CAS no. 3825-26-1),
    9.  Nonadecafluorodecanoic acid (CAS no. 355-76-2),
    10. Ammonium nonadecafluorodecanoate (CAS no. 3108-42-7),
    11. Sodium nonadecafluorodecanoate (CAS no. 3830-45-3),
    12. Perfluorononanoic acid (PFNA)(CAS no. 375-95-1),
    13. Sodium heptadecafluorononanoate (CAS no. 21049-39-8), and
    14. Ammonium perfluorononanoate (CAS no. 4149-60-4).

Assemblymember Muratsuchi commented, “This landmark bill will ban cosmetics in California that contain 24 toxic chemicals known to cause cancer, reproductive harm, and hormone disruption.”

Senate Bill 312

SB 312, titled the “Cosmetic Flavor and Fragrance Ingredient Right to Know Act” was introduced by Senator Connie Leyva. This new law places reporting requirements on companies that sell certain beauty or personal care products in California. Specifically, the legislation requires companies that make beauty and personal care products to report the presence of designated hazardous fragrance and flavor ingredients to the California Department of Public Health Safe Cosmetics Program, which would then make such information publicly available through their Safe Cosmetics Database. The specific chemicals covered by SB 312 are those identified on any one of 22 “designated lists,” including California’s Proposition 65 list and chemicals classified by the EU and various agencies in the U.S. and abroad as carcinogens, reproductive toxicants, or otherwise hazardous.

Senator Leyva emphasized that SB 312 “… will ensure that consumers in California know what ingredients are in the beauty and personal care products they bring home to their families and use on their bodies. This first-in-the-nation legislation empowers consumers and underscores the belief that no toxic ingredients should be kept secret.”

Compliance

Since SB 2762 bans 24 specific chemicals and does not take effect until 2025, companies should have adequate time to prepare and consider potential reformulation of affected products.

Conversely, compliance with SB 312 will be far more onerous and complicated. As discussed, SB 312 will require personal care product manufacturers to cross-check 22 designated lists (some maintained by foreign jurisdictions) for each ingredient in their personal care products to determine if any of those ingredients are subject to the reporting requirement. The lack of a central clearinghouse or database to check each of the designated 22 lists complicates the compliance piece.

Potential Liability for Violations

Although neither AB 2762 nor SB 312 contains explicit provisions regarding enforcement and potential liability for noncompliance, other California laws may provide an avenue for possible recovery for a company’s failure to adhere to these restrictive pieces of legislation.

For example, the reporting aspect of SB 312 provides Proposition 65 plaintiffs groups with potential targets, since all Proposition 65-listed chemicals are subject to SB 312. Settlements under Proposition 65 can be expensive (due to possible civil penalties and payment of plaintiffs’ attorneys fees) and burdensome (based on required injunctive relief in the form of detailed warnings or reformulation).

In addition, companies violating either AB 2762 or SB 312 could be liable for potential civil penalties under Business and Professions Code section 17200 -- known as California’s Unfair Competition Law (the “UCL”) -- among other laws.  The UCL is broad in scope, prohibiting any unlawful, unfair, or fraudulent business act or practice. Virtually any violation of law can serve as the predicate offense under the UCL. A District Attorney or other government official acting on behalf of the public may be able to bring an action under the UCL against the company responsible for the wrongful practices, seeking civil penalties of up to $2,500 for each individual violation. Depending on the number of cosmetics or personal care products sold that contain any of the 24 banned chemicals, for example, the civil penalties under the UCL could be significant.

Comparison to California’s Proposition 65

All of the 24 ingredients identified in AB 2762 are currently banned from being used in personal care products in the European Union and most of the 24 ingredients are also on California’s Proposition 65 list of toxic chemicals. Notably, the new legislation differs from Proposition 65 in that is specifically exempts products “made through manufacturing processes intended to comply with this chapter” but that “contain[] a technically unavoidable trace quantity of an ingredient” on the list. This limitation on the breadth of the law offers an advantage for industry, as in recent years companies have faced potential liability for the sale of products in California that contained Proposition 65 listed chemicals in trace amounts due to manufacturing processes.

As noted above, SB 312 expressly includes all Proposition 65-listed chemicals. However, SB 312’s reporting requirements go far beyond the chemicals listed under Proposition 65 with the addition of 21 other designated lists as set out in the legislation.

Takeaways

This new legislation follows an overall trend in the cosmetics and personal care industries towards “clean beauty” and furthers California’s longstanding efforts in the name of consumer protection. With increased consumer awareness and concern regarding ingredients in their products, legislators in other states may be more motivated to seek these type of bans.

This landmark legislation underscores the importance of a comprehensive compliance program to avoid potential liability. Although these laws do not go into effect until 2022 and 2025, cosmetic and personal care companies should use a forward-thinking approach. Certainly, companies should review product formulations to identify products that contain any of the 24 listed chemicals and consider measures to eliminate them from their products and/or replace them with appropriate substitutes. Similarly, companies should begin to evaluate whether their formulations contain any of the ingredients on any of the “22 designated lists,” again with the idea of removing and/or replacing those ingredients.

Being proactive to ensure compliance with any consumer protection law is key to reducing risk and potential liability.

Arent Fox LLP has extensive experience counseling clients regarding regulatory requirements for cosmetics and personal care products, including under the Food, Drug, and Cosmetic Act, Proposition 65, and the California Cleaning Product Right to Know Act. Notably, the Cleaning Product Right to Know Act involves the same 22 designated lists as SB 312. 

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