New California Law Regulates Chemicals in Cosmetics

Last week, on September 30, California Gov. Gavin Newsom signed into a law a pair of bills, AB 2762 and SB 312, that will change California’s regulation of cosmetics. 

The first law, which amends the Health and Safety Code, will prohibit, from January 1, 2025, manufacturing or selling any cosmetic product with any intentionally added amount of 24 specific chemicals. The list includes formaldehyde, certain plasticizers (i.e., phthalates), certain per- and polyfluoroalkyl substances (PFAS), and mercury. Some of these substances, especially phthalates and PFAS, have become an increasing target of state regulation across various consumer and commercial uses. The law provides an exception for the presence of listed substances as an impurity at trace quantities. 

The second law, named Cosmetic Fragrance and Flavor Ingredient Right to Know Act of 2020, requires companies selling cosmetics products in California to report the presence of any hazardous fragrance and flavor ingredients in their products to the state Department of Public Health’s Safe Cosmetics Program. The agency then will make that information public through its Safe Cosmetics Database. The law indicates that it is concerned with potential “carcinogens, reproductive toxicants, asthmagens, neurotoxicants, allergens, and other chemicals of concern.” The law requires reporting of myriad chemicals listed by “authoritative bodies,” including state and federal agencies, as well as certain lists maintained by the Canadian and European Union governments.

The enactment follows on some industry groups’ dropping opposition this summer. The Governor noted in a press release his view that the federal government does not adequately regulate the listed chemicals. However, federal regulation of some of these chemicals is a more complicated story. 

The U.S. Environmental Protection Agency (EPA) has designated some of these chemicals, including formaldehyde, as “high-priority substances” under the Toxic Substances Control Act (TSCA), and those are undergoing risk evaluations at EPA. The result of the risk evaluation could place restrictions on uses of those chemicals, which could preempt certain state laws. However, products subject to the Federal Food, Drug, and Cosmetics Act (FFDCA) are generally not subject to TSCA. As such, the interplay between new state laws, TSCA, and the FFDCA will continue over coming years as more states take up green chemistry and toxic substance regulation.