On October 1, 2020, California passed a law identified as the Toxic Free Cosmetics Act. The Act will prohibit, beginning on January 1, 2025, the manufacturing or selling of any cosmetic product with any intentionally added amount of 24 specified chemicals. The specific list of chemicals includes certain phthalates, formaldehyde, mercury, and PFAS (certain per- and polyfluoroalkyl substances). Although some states have previously passed legislation banning some of the specified chemicals in cosmetic products (e.g., in children’s products), California is the first state to pass such a broad band as to cosmetics in general, and specifically to PFAS.

This is not the first time the cosmetics industry has had to respond to environmental regulatory developments in California. Under California’s Proposition 65 law (“Prop 65”), cosmetics have been a frequent target for consumer bounty hunter actions. The cosmetics industry has generally taken steps to comply with Prop 65 by reducing the concentrations of Prop 65 chemicals or providing the required Prop 65 warnings under law. Nevertheless, the Toxic Free Cosmetics Act will no longer allow the option of a Prop 65 warning, which will require the cosmetics industry to now eliminate (not reduce) the 24 listed chemicals (excepting unavoidable trace quantities).

The inclusion of PFAS on the list of 24 chemicals is of particular interest, as California has also been on the forefront of other environmental regulatory actions concerning PFAS. PFAS includes over 5000 different compounds that have been used in a wide variety of industries. PFAS has recently been reported by the US Department of Health and Human Service’s Agency for Toxic Substances and Disease Registry (“ATSDR”), based on various publications, as potentially causing reproductive and developmental effects in animals, and the EPA has identified limited epidemiological findings concerning possible immune system and thyroid disruption, as well as cancer. Nevertheless, the epidemiological evidence concerning PFAS is very limited and currently developing.

PFAS has been used in many common consumer and industrial products, such as carpet, paints, food packaging, stain resistant sprays, and non-stick cookware. PFAS was also used as a fire-fighting compound in aqueous film forming foam, which served as a very effective fire extinguisher, and has been widely used by the military, airports, and other firefighters throughout the country. The broad uses of PFAS has resulted in detections in soil and drinking water aquifers throughout the United States.

The regulatory framework for addressing PFAS is evolving rapidly. For better or worse, California has stepped to the forefront. For example, on September 29, 2020, California passed a law banning the manufacture, sale and use of PFAS firefighting foam in most applications starting on January 1, 2022. In July 2020, the California Department of Toxic Substances Control released a proposal to regulate plant fiber-based food packaging containing PFAS and has been holding public workshops to develop such regulations.

California’s aggressive regulation of PFAS has also extended to the environmental presence of PFAS in drinking water. The EPA has not yet set a maximum contaminant level (“MCL”) in drinking water for PFAS. Instead of setting MCLs, EPA established health advisory levels for PFAS, which equate to 70 parts per trillion (ppt) in drinking water. As the threshold is advisory, it is not mandated; however, many states have adopted the EPA’s advisory level of 70 ppt.

California, nevertheless, stepped out in front of both the EPA and all other states. In February 2020, California’s State Water Resources Control Board reduced the response levels for PFOA and PFOS to 10 ppt and 40 ppt, respectively. Response levels are advisory levels above which California recommends taking a water source out of service. As day follows night, the removal of drinking water sources from service has resulted in environmental litigation concerning the recovery of associated costs, as a wave of PFAS litigation concerning both environmental releases and products liability is beginning to roll across the country.