Cosmetics Companies: Beware of PFAS

Faegre Drinker Biddle & Reath LLP
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Faegre Drinker Biddle & Reath LLP

It’s no secret that the regulatory landscape of cosmetics and personal care products as we know it is changing. Over the last few years, Congress, along with industry and consumer groups, have made a combined effort to push for heightened regulation of these products. The latest effort, introduced in Congress on June 15, 2021, seeks to ban the addition of per- and polyfluoroalkyl substances (generally known as “PFAS”) in cosmetics and personal care products.

The No PFAS in Cosmetics Act coincided with the release of a new study, which found markers of PFAS in 52% of 231 makeup products purchased in the U.S. and Canada. The study was published in the Environmental Science & Technology Letters and found that the highest levels were in foundations, waterproof mascara, and lipstick. On the heels of this study, the No PFAS in Cosmetics Act seeks to ban the intentional addition of PFAS in cosmetic products. (PFAS may be intentionally added to products for purposes of consistency and texture.) The term “cosmetics” is not defined in the bill’s language; however, this bill comes a few short months after the FDA published a webpage about PFAS in body lotions, nail polish, shaving cream, foundation, mascara, and other personal care products.

Notably, this bill is not the first legislative action taken to address PFAS in cosmetics. Last year, California passed Assembly Bill 2762, which bans the intentional addition of lead, mercury, and certain PFAS from cosmetics sold in the state beginning in 2025. In addition, California passed Senate Bill 312 last year, which requires manufacturers to disclose flavor and fragrance ingredients by 2022.

With consumer groups actively testing household goods, including cosmetics, for several different types of PFAS, companies should examine their products and supply chains and determine if, when, and where PFAS may affect their business.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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