PFAS in Cosmetics Continue to Draw Attention as Litigation and Legislation Efforts Mount

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In June 2021, we published Cosmetics Companies: Beware of PFAS, highlighting the recently introduced No PFAS In Cosmetics Act and recommending that cosmetics and personal-care product companies examine their products and supply chains to determine if, when, and where PFAS may affect their businesses. As anticipated, PFAS in cosmetics has continued to draw attention, with the filing of at least two lawsuits and the anticipated enactment of PFAS legislation in several states.

The No PFAS In Cosmetics Act, which seeks to ban the use of intentionally added per- or polyfluoroalkyl substances (“PFAS”) in cosmetics, was introduced in the House on June 17, 2021. The bill has been assigned to the House Energy and Commerce Subcommittee on Health, but no hearing has been scheduled. Ultimately, the bill will require the Department of Health and Human Services to issue and finalize a rule banning the use of intentionally added PFAS in cosmetics. In the meantime, on February 2, 2022, over 30 senators sent a letter to President Biden requesting funding for Fiscal Year 2023 for PFAS research, regulatory efforts, and testing.

In addition to efforts at the federal level, plaintiffs, consumer groups, and state legislatures have focused efforts on highlighting the existence of PFAS in a variety of products, including food packaging, household goods, and cosmetics.

In December 2021, for example, five plaintiffs filed a class action lawsuit against Shiseido Americas Corporation on behalf of “all consumers who purchased bareMinerals products[.]” Onaka v. Shiseido Americas Corp., 1:21-cv-10665 (S.D.N.Y). The plaintiffs assert breach of warranty, negligent misrepresentation, fraud, and violation of various state consumer protection laws and allege that Shiseido’s bareMinerals-brand products are falsely advertised as “clean,” “pure,” and “free of harsh chemicals and unnecessary additives.” Plaintiffs allege these statements are false because bareMinerals-brand products contain PFAS, which the plaintiffs assert “[are] not clean or natural.” Plaintiffs even assert that the name “bareMinerals” deceived consumers into believing the products are “bare” of certain additives and ingredients.

Also in December 2021, plaintiff “GMO Free USA d/b/a Toxin Free USA” filed a lawsuit in the Superior Court of the District of Columbia against Cover Girl Cosmetics and Coty, Inc., alleging false and deceptive marketing and sale of CoverGirl-brand TruBlend Pressed Powder. GMO Free USA v. Cover Girl, 2021 CA 004786 B. Like the Onaka class action plaintiffs, GMO Free USA alleges that the defendants’ characterization of the products as “sustainable” is false and misleading because the products contain PFAS. The plaintiff describes PFAS as “forever chemicals” that accumulate in “soil, water, humans, and elsewhere in the environment, threatening other organisms.” Notably, the complaint references “a growing consumer advocacy movement to eliminate PFAS from various products, including cosmetics.”

While plaintiffs and consumer groups are filing PFAS-related lawsuits, various state legislatures also continue the discussion of PFAS regulations at the state level. Specifically, California, Colorado, Massachusetts, Maine, and Rhode Island are expected to consider policies to restrict PFAS in cosmetics and personal-care products over the next several months.

As we have seen over the past year, PFAS in cosmetics continues to draw attention from regulators, legislators, industry and consumer groups, the media, and now, plaintiffs. In anticipation of tightened regulations and increased scrutiny on PFAS, cosmetics companies should determine the extent to which these substances may exist in their products.

About the Author: Jessica Benson Cox

Jessica Cox defends pharmaceutical companies, device manufacturers and other industry leaders involved in product liability litigation.

About the Author: Lexi C. Fuson

Lexi Fuson litigates product liability cases in state and federal courts across the U.S. and Canada, including federal multidistrict litigation (MDL) and class actions. Lexi is experienced in complex litigation, as well as regulatory compliance and risk avoidance strategies. She has substantial experience drafting product warranties, including consumer product warranties under the Magnuson-Moss Warranty Act, product manuals and instructions, and product warnings. Lexi has also assisted with managing regulatory recalls and counseling clients on regulatory compliance, including compliance with CPSC, NHTSA and FDA regulations.

About the Author: Amy L. Waite

Amy Waite remains on the pulse of developments in product liability and environmental law, particularly as it pertains to the food and agribusiness space. She focuses her practice on helping clients improve product stewardship and manage liability risk. Her regulatory proficiency is matched only by her agricultural marketing savvy, which she draws on to support clients’ business strategy.