‘Forever Chemicals’ Reckoning Hits Cosmetics With New State Laws

A string of first-of-their-kind state laws banning “forever chemicals” in cosmetics like lipstick and mascara took effect this month amid mounting worries about the chemicals’ health and environmental risks.

States including California and Colorado are the first to target the cosmetic industry’s intentional use of per- and polyfluoroalkyl substances, known as PFAS or “forever chemicals” because they’re resistant to breaking down. Several more states are looking to impose similar bans as part of a broader push to remove PFAS in a range of consumer products, from textiles to cookware.

PFAS—often used for stain and water resistance—have been added to beauty products including eyeshadow or lipstick to add a shine or to change the texture. But there hasn’t been much research on whether PFAS in cosmetics absorbed through the skin could be harmful to shoppers, according to the Food and Drug Administration’s website.

Businesses have been seeking assurances from suppliers that their products don’t have any PFAS risks, and are even switching out materials or culling items from makeup shelves, for example, to comply with the new state laws.

Companies should figure out how the mix of new requirements applies to their specific products, decipher where PFAS could enter their supply chain or facility, and navigate how they could potentially be exposing customers or employees to the chemicals, lawyers say.

The patchwork of state laws can be tricky to navigate for companies operating nationwide. Adding to the complexity, some laws target retailers while others focus on manufacturers.

“If they can eliminate PFAS altogether, certainly a lot of companies are doing that,” said Stephanie Feingold, a partner at law firm Morgan Lewis who focuses on forever chemicals and environmental issues. “But they need to have an alternative that will perform the same function,” she said.

There’s another business hurdle beyond the nascent laws: consumer class actions taking issue with misleading advertising for products labeled as “green” are likely to point to the presence of PFAS, defense lawyers say. These lawsuits are part of a broader boom in “greenwashing” allegations as businesses have tried to capitalize on consumer interest in products billed as sustainable or environmentally friendly.

Plaintiffs have been testing products for forever chemicals that could make their way into any kind of green product unintentionally through water, for example.

“There’s definitely a risk even if a company is trying to do the right thing by phasing out PFAS,” said Alfredo Fernández, a partner at Shipman & Goodwin LLP who focuses on PFAS and environmental issues.

State Bans

PFAS can build up in animals, plants, and drinking water, posing risks to human health and the environment. More research needs to be done, the Environmental Protection Agency has said, but possible health risks of PFAS exposure include decreased fertility, cancer, and low birth weight.

Aside from cosmetics, the newly enacted state laws target other potential PFAS exposure avenues, including personal care products and textiles. Fernández said states are taking this approach because it’s a relatively easy way “to prevent some of these products from getting into people’s bodies or businesses or homes.”

Bans on intentionally added PFAS in cosmetics and personal care products span California, Colorado, Washington state, and Maryland, in addition to a broader Minnesota law that covers these products. The new rules could spark further scrutiny of other chemicals used in beauty products, said Kelly Bonner, an attorney at Duane Morris LLP who advises companies on consumer litigation in the beauty industry.

“I think we can expect additional restrictions on cosmetic ingredients—particularly at the state level—as regulators and state legislators respond to increased constituent concerns over perceived health risks or impacts on younger consumers,” Bonner said.

Attention on cosmetic ingredients has proliferated as environmentally friendly, nontoxic or “clean beauty” advertising rises to meet consumer demand.

New York and California have new laws focused on PFAS in textiles, while others in Oregon and Hawaii focus on food packaging. Some states are taking on multiple industries with more sweeping laws. For example, Minnesota is prohibiting PFAS in cosmetics, cleaning products, cookware and more—including their packaging.

These new bans went into effect at the start of this year.

Some companies will choose to follow certain state laws for the entire US market, while others might change which products they sell based on the jurisdiction, said Meaghan Colligan, a partner at Holland & Knight LLP who focuses on environmental and PFAS issues.

“When it starts to cross a critical mass, they might think about changing their inventory more broadly,” Colligan said. “So states can really influence these issues before the federal government.”

While the new state laws are likely to encourage further PFAS bans, there are some situations where manufactures can’t avoid using these long-lasting chemicals. Some of the new state laws (in Maine, for example) recognize that there are certain products where there isn’t a viable PFAS substitute, such as in certain electronics and semiconductors.

The state laws say that in these cases, companies need to make sure to disclose any PFAS added to the product, “which comes with its own headaches,” Feingold of Morgan Lewis said.

Court Cases

Lawsuits over PFAS in consumer products have targeted everything from waterproof mascara to “plant-based” baby wipes.

A proposed consumer class action filed earlier this month against Samsung takes issue with its smartwatch bands, claiming that they contain “excessive levels” of PFAS despite marketing touting the bands’ environmental bona fides.

A similar suit this month targeted the health food market Sprouts over its disposable tableware, alleging that the products—billed as compostable and thus better for the environment—could be contaminating compost streams with PFAS that will not break down.

Despite the irony, some plant-based items have actually relied on forever chemicals: some companies use PFAS as a grease proofing barrier in ‘plant-based’ food packaging, for example, although the practice is now banned in some states.

“What could be an environmental benefit somewhere is an environment risk in the same way,” Fernández said.