Cosmetics Regulation
Currently, cosmetics are regulated through the Federal Food, Drug, and Cosmetic Act (FDCA)– which has recently been revamped by the Modernization of Cosmetics Regulation Act (MoCRA)–and various state legislation. At the national level cosmetic ingredients other than color additives do not require FDA approval although each ingredient must be safe for humans. FDA, however, will review specific ingredients that cause particular harm or concern. For example, FDA will likely ban the use of formaldehyde and formaldehyde releasing chemicals including methylene glycol from hair relaxers given a recent proposed rule.
MoCRA includes a provision expressly providing that nothing in the act would prevent a state from regulating particular cosmetics or ingredients. Thus, States may still pass laws regulating cosmetics subject to potential FDA preemption. This has the potential to create uncertainty when it comes to various state regulation on cosmetics.
Breadth
Multiple states have taken steps to independently ban ingredients from cosmetics following the European Union law passed in 2021. Such laws will require market participants to reformulate regardless of FDA intervention.
Below are a few states that either have passed or are considering legislation covering cosmetic ingredients: (Mobile users: rotate your phone horizontally to view the chart)
*Denotes compound already banned in cosmetics by federal statute or regulation.
Conclusion
While most laws passed or proposed target similar ingredients, market participants would be wise to conduct their independent research to assure they are in compliance with state law. With many states moving to enact bans on various ingredients it may be easy for companies to lose track of what is acceptable and where. A new era of cosmetics is around the bend and Locke Lord’s FDA Regulatory and Cosmetic and Personal Care teams can help you prepare for what is to come.
