Hunton Retail Law Resource

A group of Democratic representatives led by Rep. Jan Schakowsky (D-IL) have introduced a “Safer Beauty” bill package that would ban certain chemicals in cosmetics and require more ingredient transparency in the supply chain.  The Safer Beauty bill package is comprised of four separate bills targeting certain “chemicals of concern” commonly used in cosmetics—including PFAS, phthalates, and formaldehyde.

Below, we briefly summarize the core provisions of each bill and offer three key takeaways for cosmetics manufacturers, suppliers, and retailers.

The Toxic-Free Beauty Act of 2021

The Toxic-Free Beauty Act of 2021 (HR 5537) would ban the following chemicals in all beauty and personal care products (consumer and professional):

• Dibutyl phthalate (DBP)
• Diethylhexyl phthalate (DEHP)
• Formaldehyde
• Paraformaldehyde
• Methylene glycol
• Quaternium-15
• Mercury
• Isobutylparaben
• Isopropylparaben
• m-Phenylenediamine and its salts
• o-Phenylenediamine and its salts
• All perfluoroalkyl and polyfluoroalkyl substances (PFAS)

The Toxic-Free Beauty Act of 2021 is modeled after nearly identical legislation recently enacted in California (September 2020) and Maryland (June 2021).

Three of these chemicals (DBP, DEHP, and formaldehyde) are also currently undergoing risk evaluation by the United States Environmental Protection Agency (EPA).  Moreover, PFAS remain a focal point of EPA’s regulatory agenda.  While EPA’s regulatory efforts are unlikely to affect cosmetics directly —the Food and Drug Administration (FDA) generally has the exclusive authority to regulate cosmetics—EPA’s attention to these chemicals may fuel support for the Toxic-Free Beauty Act and the other bills in the Safer Beauty package.

The Cosmetic Fragrance and Flavor Right to Know Act of 2021

The Cosmetic Fragrance and Flavor Right to Know Act of 2021 (HR 5538), which is largely based on California’s substantially similar and recently enacted law (September 2020), would require manufacturers to disclose the following:

• On product packaging:
  • Any fragrance or flavoring chemicals that appear on various “lists” identified in the bill (including lists of chemicals published by IARC, ATSDR, and EPA); and
  • Any of the 26 fragrances identified as “allergens” and listed in Annex III the European Union’s EC Regulation 1223/2009.
• On websites:
  • All chemicals required to appear on product packaging as outlined above; and
  • Any other intentionally added fragrances or flavor ingredients present in the finished product at or above 100 ppm.

The Cosmetic Supply Chain Transparency Act of 2021

The Cosmetic Supply Chain Transparency Act of 2021 (HR 5539) would require upstream suppliers of cosmetic ingredients and materials to disclose certain information to its purchasers upon request, including:

• The identity of all ingredients (by name and Chemical Abstract Service, or CAS, number),
• Toxicity and safety data for each ingredient; and
• Analytical and contaminant testing reports.

Notably, the requirement that suppliers provide analytical and contaminant testing reports—to include the testing method and limits of detection—appears to be aimed, at least in part, at the controversy surrounding talc, which can be contaminated with asbestos and is a common ingredient in cosmetics.  Lawsuits claiming that talc-containing cosmetics have caused cancer—and that companies failed to use proper analytical methods to test for asbestos in the talc—have already generated multi-million (and even multi-billion) dollar verdicts around the country.

The Cosmetic Safety for Communities of Color and Professional Salon Workers Act

The Cosmetic Safety for Communities of Color and Professional Salon Workers Act (HR 5540) would require:

• The disclosure of all ingredients on product labels and manufacturer websites; and
• The increased availability—including translations into multiple languages—of Safety Data Sheets (SDS).

The bill would also establish a number of more administrative measures that could generate future regulations, including:

• Authorizing the Secretary of the FDA to request certain chemical safety data from other federal agencies and recognized sources;
• Requiring the FDA to work with the Office of Minority Health and community stakeholders to identify ingredients adversely affecting salon professionals and communities of color;
• An NIEHS grants program designed to research “chemicals of concern” in cosmetics targeted for use by communities of color and salon professionals—including marketing methods for those products—and develop strategies for addressing issues identified through the program;
• An EPA grants program tasked with developing “green” alternatives for use in products marketed to communities of color and salon professionals; and
• An interagency council dedicated to sharing data concerning cosmetic safety issues affecting communities of color and salon professionals.

Key Takeaways for Cosmetics Manufacturers and Retailers

All companies involved in the cosmetic and personal care product supply chain should watch for the following as the Safer Beauty bill package moves through Congress:

• This will likely be a well-coordinated and high-profile legislative effort. The rollout of the Safer Beauty bills package appears to be a coordinated effort between the bills’ co-sponsors and prominent consumer-oriented organizations.  Over 120 organizations (including some cosmetic companies) announced their support even before the package was formally introduced.  Moreover, the bills’ co-sponsors may have deliberately chosen to divide the “Safer Beauty” effort into four separate bills to increase the likelihood that at least some of the bills will pass, rather than presenting an “all-or-nothing” bill that may be more likely to be voted down.
• Consumer and legislative trends could tip the scales in favor of passage. In addition to support from consumer advocacy groups, the bills may also benefit from recent trends.  California and Maryland have recently enacted substantially similar laws, suggesting a growing legislative and constituent appetite for these issues.  And in a July 29, 2021 press briefing to announce the forthcoming legislation, the bills’ co-sponsors expressed optimism that they could generate bipartisan support for the package, particularly given that more women are serving in Congress than ever before.
• Legal risk associated with chemicals in cosmetics continues to increase. Even if some or all of the bills do not pass, they reflect heightened consumer awareness of chemicals and a demand for more transparency from companies.  Companies whose supply chains may involve “chemicals of concern” should consider taking steps now to prepare for possible regulations, including developing compliance policies designed to mitigate risk.  For example, many companies already have public supplier policies prohibiting or otherwise restricting the use of certain chemicals.  As more states and the federal government turn their attention to chemicals, consumer awareness and concern over certain chemicals will only increase.  And as consumer concern grows, so too will additional regulatory and litigation risk.