As consumers change and evolve so do the industries that serve them; the cosmetics industry is not alone in this constantly moving product cycle. The clean cosmetic industry is just one microcosm of this. Cosmetics manufacturers are adapting to consumer demand for products that contain fewer additives or can be marketed as “environmentally friendly.” The consumer demand is there, to put it mildly. In fact, this is an industry that’s on the fast track for growth, and it’s anticipated that by 2024 the clean beauty market will have reached a target of $22 billion, according to Forbes’.
Long-lasting is one of the most frequently used adjectives chosen to describe the contents of a variety of different cosmetics products, ranging from foundations to lipsticks. However, some would argue that there are only so many ways to manufacture and develop a product so that it lives up to its “long-lasting” description. This frequently involves the use of a variety of chemicals to achieve such durability and at the same time water resistance. One group of such chemicals, commonly labeled as “PFAS,” are often synonymous with the description of “forever chemicals.” The Environmental Protection Agency has explained that PFAS or per-and polyfluoroalkyl substances, which commonly include both perfluorooctanoic (“PFOA”) and perfluorooctane sulfonate (“PFOS”), are a category of manufactured chemicals that have long-lasting properties that can negatively impact the environment, people, and animals. The EPA also emphasized that exposure to PFAS can occur in a variety of capacities, including exposure through product use and product packaging. As noted by the EPA, the harm associated with PFAS exposure is well-documented and can include an increased risk of cancer and a reduced ability for one’s immune system to effectively fight infection; this even includes a reduced response to vaccines.
An Everyday Health article summarized the findings of a recent study that examined the frequency of PFAS use across cosmetics; it was advised that those interested in avoiding cosmetics containing PFAS should be wary of labels containing the following adjectives: wear-resistant, waterproof, and long-lasting. However, it is possible to manufacture cosmetics products that don’t include PFAS. The Green Policy Institute has explored that exact possibility; in fact, both H&M and IDUN Minerals have chosen to not include PFAS in their cosmetics products.
Risk Management Assessment: The Insurance Landscape
Beyond shifting consumer demand, lawmakers have also taken notice. Recent legislative activity at both the state and federal level may also impact manufacturers, designers, distributors and transporters of cosmetic products containing PFAS.
Legislative Framework: Redefining Change
California was one of the frontrunners in promoting the reduction of chemicals used in both its cosmetics and personal care products. The California Toxic Free Cosmetics Act (“AB 2762”), which was signed into law on September 30, 2020 and will be effective as of January 1, 2025, prohibits an expansive list of chemicals, including thirteen different forms of PFAS chemicals. The focus of this legislation is to remove the intentionally added ingredients in cosmetics that pose harm, including PFAS. The California legislature explained that the effect of this state legislation would be to “prohibit a person or entity from manufacturing, selling, delivering, holding, or offering for sale, in commerce any cosmetic product that contains any of the several specified intentionally added ingredients, except under specified circumstances.”
More recent legislation would go one step further and provide for a complete ban of intentionally added PFAS to cosmetics. On February 18, 2022, Assembly Bill 2771 was introduced by Laura Friedman, a California Assemblymember. As described by the California legislature, under this proposed legislation “Beginning January 1, 2025, no person or entity shall manufacture, sell, deliver, hold, or offer for sale in commerce any cosmetic product that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS).”
As noted above, California has already taken steps to help prevent the use of PFAS in the cosmetics industry, and these state legislative moves may foreshadow how this issue could be addressed and finalized on a federal level. California is not the only state to address PFAS and cosmetics from a legislative perspective, as Colorado and Maine have reportedly done the same.
Federally Proposing a Means to Adapt to a Changing Industry
At the federal level, the No PFAS in Cosmetics Act (“US HR 3990/S.2047”), was introduced in June of 2021. If passed, the No PFAS in Cosmetics Act would prohibit both perfluoroalkyl and polyfluoroalkyl (“PFAS”) substances from being intentionally added to cosmetics products, allowing for the Department of Health and Human Services to finalize a rule to end such use in the cosmetics industry at a national level. If enacted, Rep. Debbie Dingell, one of the individuals who introduced this bi-partisan legislation, explained that the Food and Drug Administration would be required to implement a complete ban of PFAS for the cosmetics industry within 270 days of enactment.
How Technology Can Improve the Environmental Landscape of Cosmetics
Technology is also facilitating the spread of updated ingredient information. Not surprisingly, there’s an app for that. Many people want a real-time practical application that can be used to find safer alternative products in today’s cosmetics world. An Everyday Health article explained how the EWG has developed such a product, the EWG Healthy Living app, that can be easily downloaded and then used to search products by scanning bar codes or through entering search terms. The article went on to add how a hazard score is generated, indicating that fewer ingredients are present with a lower score.
With growing momentum to eliminate the use of PFAS across product industries such as cosmetics, as well as heightened consumer awareness and access to information regarding these products, the risks associated with PFAS and its insurability are at a critical juncture. PFAS- related products liability claims against cosmetic manufacturers have recently started to pop up, such as the case of Onaka et. al. v. Shiseido Americas Corporation (involving the alleged use of PFAS in Shiseido’s bareMinerals line of makeup products). The evolution of this type of litigation will be worth monitoring in the coming years.
By: Jessica Cambridge