In case you missed it, Washington State Governor Jay Inslee signed HB 1047 – A bill concerning the use of toxic chemicals in cosmetic products – into law on May 15th 2023.  Beginning January 1, 2025, no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in the state any cosmetic product that contains any of the following intentionally added chemicals or chemical classes:

• Ortho-phthalates;
• Perfluoroalkyl and polyfluoroalkyl substances;
• Formaldehyde (CAS 50-00-0) and chemicals determined by the department to release formaldehyde;
• Methylene glycol (CAS 463-57-0);
• Mercury and mercury compounds (CAS 7439-97-6);
• Triclosan (CAS 3380-34-5);
• m-phenylenediamine and its salts (CAS 108-45-2); and
• o-phenylenediamine and its salts (CAS 95-54-5) 

Additionally, none may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in the state any cosmetic product that contains intentionally added lead or lead compounds (CAS 7439-92-1), lead or lead compounds at one part per million (ppm) or above, or as otherwise determined by the department through rule making.  

Retailers may sell through existing stock to the public until January 1, 2026. 

Some aspects of this bill are similar to what we have seen in other state laws with a couple of noteworthy exceptions; formaldehyde releasing chemicals and cosmetic products containing lead or lead compounds at 1 ppm or above.

Regarding formaldehyde releasing chemicals, the Department of Ecology or “the department” as it is referred to in the bill may identify for restriction an initial set of no more than 10 of the listed chemicals used in cosmetics that release formaldehyde.  This restriction must take effect on or after January 1, 2026.  Restrictions on the remaining listed chemicals used in cosmetics that release formaldehyde may take effect on or after January 1, 2027.  At stake here for the cosmetic industry is the potential banning of two commonly used preservatives, Imidazolidinyl Urea and DMDM Hydantoin, as early as 2026.  The list of preservatives available for use by the cosmetic industry keeps getting smaller and smaller and the remaining alternatives, to my knowledge, have not been clinically shown to be any safer.

As for the restriction on cosmetic products containing lead or lead compounds at 1 ppm or above, in December 2016, the U.S. Food and Drug Administration (FDA) issued draft guidance to industry recommending that cosmetic lip products such as lipsticks, and externally applied cosmetics not contain more than 10 ppm lead as an impurity.  This was based on the determination that up to 10 ppm lead in these products would not pose a health risk.  You can read more on the FDA’s website here.  This bill is directly at odds with the FDA, the agency entrusted to protect and advance public health.

Both restrictions have huge impact on the cosmetic industry in a relatively short period of time.  Considering the average development timeline is between 12-18 months, a January 1, 2025 deadline does not give the cosmetic industry a lot of time to react.  This is taking into consideration that since preservatives will need to be replaced safety and preservative efficacy testing will need to be repeated.  Additionally, companies are going to have to test their products for lead, and if found over the 1 ppm limit will have to reformulate.  That is a tough ask because lead is ubiquitous, and its occurrence as an impurity in cosmetic products can’t be avoided.

Not to pile on, but some of the requirements of the Modernization of Cosmetics Regulation Act (MoCRA) may also have some standing here.  Companies will need to determine both business and regulatory strategies for successful implementation.  

If you need help determining your regulatory strategy and/or creating internal procedures for implementation, please contact us directly.  We would be happy to help.