PFAS In Cosmetics: Financial and Insurance Companies On Notice
PFAS in cosmetics has received steadily increasing media attention and with the publication of a June 15, 2021 scientific study in the Journal of Environmental Science and Technology Letters, the attention on this issue suddenly increased significantly at the scientific, media, and legislative levels. The study tested a variety of cosmetics products from the United States and Canada for PFAS content, and found PFAS present in over half of the products. On the same day that the study was published, the No PFAS In Cosmetics Act 2021 was introduced in the Senate by U.S. Senators Susan Collins (R-ME), Richard Blumenthal (D-CT), Dianne Feinstein (D-CA), Maggie Hassan (D-NH), Jeanne Shaheen (D-NH), Kirsten Gillibrand (D-NY), and Angus King (I-ME). The bill seeks to ban PFAS in cosmetics, with the term “cosmetics” not yet defined by the bill language.
With these developments, our prediction that cosmetics is the number two target for PFAS litigation issues behind water rings true. Cosmetics manufacturers and suppliers must take action now, if they have not already, to determine the scope of potential PFAS liability issues, spanning the gamut from environmental pollution to products liability / personal injury issues.
PFAS In Cosmetics Scientific Study
The recent PFAS study examined 231 cosmetic products sold in the United States and Canada. 52% of the products contained some degree of PFAS. The scope of the cosmetics studied included a variety of cosmetic products, and each category of products tested positive for certain PFAS, as follows: 55% of lip products (lipstick, gloss, shadow, liner, shimmer, balm), 62% of liquid lipstick, 63% of foundation, 36% of concealers, 47% of mascara, 40% of face products (powder, blush, bronzer, highlighter, primer, spray) and 58% of eye products (shadow, liner, cream, primer, pencil). PFAS are added to cosmetic products to condition, smooth or make skin appear shiny or to affect product consistency and texture.
In addition, the study found 88% of the tested products did not disclose on their labels that the products contained any type of PFAS.
No PFAS In Cosmetics Act 2021
The “No PFAS In Cosmetics Act 2021” is a bill filed this week by several U.S. Senators that seeks a blanket ban on all “intentionally added” PFAS that find their way into cosmetics. The bill does not define what constitutes “cosmetics” and while that is a term that will surely be negotiated during committee hearings on the bill, the intent of the Senators is for it to be far-reaching. While there is no certainty at all as to whether the bill will in fact pass and given how broadly worded it is, it is expected to be negotiated for some time.
The federal bill is the latest in a recent salvo against the cosmetics industry. Last year, California became the first state in the nation to ban PFAS in cosmetics. Similarly, the European Union has restrictions on PFAS use in cosmetic products.
In response to the recent study and the “No PFAS In Cosmetics Act 2021”, several major retailers have publicly stated that they are taking a closer look at chemicals, including PFAS, in cosmetics. Those retailers include Walmart, Target, Rite Aid, CVS, Walgreens and Amazon.
Why PFAS In Cosmetics Is A Concern
PFAS content in cosmetics raises concerns for human health in scientific communities due to the fact that PFAS are capable of entering the bloodstream in ways other than direct oral ingestion, and one of these ways includes dermal absorption. Concerns have also been raised regarding the absorption of PFAS into the bloodstream by way of tear ducts. The absorption issue is one that is being studied fairly extensively through various pending scientific studies. In addition, numerous studies are underway regarding so-called “Gen X” PFAS and their effect on human health.
With all of these studies underway, legislation pending that targets cosmetics, and increasing media reporting on cosmetics concerns to human health, the cosmetics industry has a target on its back with respect to PFAS that will have impacts on the industry’s involvement in litigation. Personal injury/products liability cases, false advertising, and failure to disclose theories of liability are some of the more prominent allegations that cosmetics companies are likely to face. Further, the cosmetics industry is concerned about federal and state-level regulatory enforcement action for environmental pollution remediation costs stemming from placing PFAS waste into the environment as a by-product of the manufacturing process.
It is of the utmost importance that businesses along the whole supply chain in the cosmetics industry evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate PFAS at an ever-increasing pace. Similarly, state-level EPA enforcement action is increasing at a several-fold rate every year. Companies that did not manufacture PFAS, but merely utilized PFAS in their manufacturing processes, are therefore becoming targets of costly enforcement actions at rates that continue to multiply year over year. Lawsuits are also filed monthly by citizens or municipalities against companies that are increasingly not PFAS chemical manufacturers.