BILL REQ. #:  H-1822.1 

Read first time 02/12/2007.   Referred to Committee on Select Committee on Environmental Health.

     AN ACT Relating to the Washington safe cosmetics act of 2007; amending RCW 69.04.060 and 69.04.070; adding a new chapter to Title 69 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that:
     (1) Independent testing in the United States and the European Union has determined that some cosmetic products contain substances known or suspected to cause cancer and reproductive toxicity that can harm mothers, fetuses, and nursing children;
     (2) Neither federal nor state law requires premarket safety testing, review, or approval of cosmetic products. According to the federal food and drug administration, the regulatory requirements governing the sale of cosmetics are not as stringent as those that apply to other regulated products;
     (3) Under the federal food, drug, and cosmetic act, 21 U.S.C. Sec. 301, cosmetics and their ingredients are not required to be approved before they are sold to the public, and the federal food and drug administration does not have the authority to require manufacturers to file health and safety data on cosmetic ingredients or to order a recall of a dangerous cosmetic product;
     (4) Under the state's uniform Washington food, drugs, and cosmetics act, no state agency has authority to identify, review, or regulate ingredients in cosmetic products that may cause chronic health effects, such as cancer and reproductive toxicity, unless the product is considered adulterated or misbranded;
     (5) Cosmetic products are most heavily used by women of childbearing age, increasing the likelihood of exposing mothers, fetuses, and nursing children to substances that can cause cancer and reproductive toxicity;
     (6) Beauty care workers, including cosmetologists and manicurists, are most exposed to the potentially harmful effects of carcinogens and reproductive toxins in cosmetics. Cosmetologists and manicurists are dominated by women and minorities, particularly from Southeast Asia;
     (7) Federal law exempts chemicals used as fragrances or flavoring from being identified as ingredients on the labels of cosmetic products. Laboratory analyses of cosmetic products sold in various states have found products that contain substances known to or likely to cause cancer or reproductive toxicity and not identified as an ingredient on the product's label. The law also does not require any ingredient labeling on cosmetic products sold for commercial use, thereby denying any information on ingredients to beauty care workers;
     (8) Alternatives to substances that cause cancer or reproductive toxicity are readily available for use in cosmetic products. A number of manufacturers, including both small domestic producers and large multinational corporations, have eliminated substances that cause cancer or reproductive toxicity from their products;
     (9) Given the presence of substances in cosmetic products that cause cancer and reproductive toxicity, the heavy use of these products by women of childbearing age, the significant exposure to these products in occupational settings such as nail and beauty salons, the adverse impacts of these substances on human health, the inadequate information about the presence of these substances in products or the extent of their impacts, and the availability of alternatives to the use of these substances, it is in the interest of the people of Washington to take steps to ensure that cosmetic products sold and used in the state can be used safely.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Chemical identified as causing cancer or reproductive toxicity" means a chemical identified by the department of ecology as developmental or reproductive toxicant or by the department of health as any of the following:
     (a) A substance listed as known or reasonably anticipated to be a human carcinogen in a national toxicology report on carcinogens;
     (b) A substance given an overall carcinogenicity evaluation of Group 1, Group 2A, or Group 2B by the international agency for research on cancer;
     (c) A substance identified as a Group A, Group B1, or Group B2 carcinogen, or as a known or likely carcinogen by the United States environmental protection agency; or
     (d) A substance identified as having some or clear evidence of adverse developmental, male reproductive, or female reproductive toxicity effects in a report by an expert panel of the national toxicology program's center for the evaluation of risks to human reproduction.
     (2) "Department" means the department of health.
     (3) "Incidental ingredient" means:
     (a) Substances that have no technical or functional effect in the cosmetic but are present by reason of having been incorporated into the cosmetic as an ingredient of another cosmetic ingredient; or
     (b) Processing aids, which are as follows:
     (i) Substances that are added to a cosmetic during the processing of such cosmetic but are removed from the cosmetic in accordance with good manufacturing practices before it is packaged in its finished form;
     (ii) Substances that are added to a cosmetic during processing for their technical or functional effect in the processing, are converted to substances the same as constituents of declared ingredients, and do not significantly increase the concentration of those constituents; or
     (iii) Substances that are added to a cosmetic during the processing of such cosmetic for their technical and functional effect in the processing but are present in the finished cosmetic at insignificant levels and do not have any technical or functional effect in that cosmetic.
     (4) "Ingredient" means any single chemical entity or mixture used as a component in the manufacture of a cosmetic product. It does not include incidental ingredients that are present in a cosmetic at insignificant levels and that have no technical or functional effect in the cosmetic.
     (5) "Manufacturer" means any person or entity whose name appears on the label of a cosmetic product.

NEW SECTION.  Sec. 3   (1) Beginning January 1, 2009, the manufacturer of any cosmetic product subject to regulation by the federal food and drug administration that is sold in this state shall, on a schedule and in electronic or other format, as determined by the department, provide the department with a complete and accurate list of its cosmetic products that, as of the date of submission, are sold in the state and that contain any ingredient that is a chemical identified as causing cancer or reproductive toxicity, including but not limited to any chemical that:
     (a) Is contained in the product for purposes of fragrance or flavoring; or
     (b) Is identified by the phrase "and other ingredients" and determined to be a trade secret under federal law. Any ingredient identified pursuant to this subsection shall be considered to be a trade secret and shall be treated by the department in a manner consistent with the requirements of Part 20 and Part 720, Title 21, C.F.R. Any ingredients considered to be a trade secret are exempt from the public disclosure required by chapter 42.56 RCW.
     (2) Any information submitted under subsection (1) of this section shall identify each chemical both by name and chemical abstract service number and shall specify the product or products in which the chemical is contained.
     (3) If an ingredient identified under subsection (1) of this section subsequently is removed from the product in which it was contained, is removed from the list of chemicals known to cause cancer or reproductive toxicity, or is no longer a chemical identified as causing cancer or reproductive toxicity by the department, the manufacturer of the product containing the ingredient shall submit the new information to the department. Upon receipt of new information, the department, after verifying the accuracy of that information, shall revise the manufacturer's information on record with the department to reflect the new information. The manufacturer shall not be under obligation to submit subsequent information on the presence of the ingredient in the product unless subsequent changes require submittal of the information.
     (4) This section does not apply to any manufacturer of cosmetic products with annual aggregate sales of cosmetic products, both within and outside of this state, of less than one million dollars based on the manufacturer's most recent tax year filing.

NEW SECTION.  Sec. 4   (1) To determine potential health effects of exposure to ingredients in cosmetics sold in the state, the department may conduct an investigation of one or more cosmetic products that contain chemicals identified as causing cancer or reproductive toxicity or other ingredients of concern to the department as follows:
     (a) An investigation conducted under this section may include, but is not limited to, a review of available health effects data and studies, worksite health hazard evaluations, epidemiological studies to determine the health effects of exposures to chemicals in various subpopulations, and exposure assessments to determine total exposures to individuals in various settings.
     (b) If an investigation is conducted under this section, the manufacturer of any product subject to the investigation may submit relevant health effects data and studies to the department.
     (c) To further the purposes of an investigation under this section, the department may require manufacturers of products subject to an investigation to submit to the department relevant health effects data and studies available to the manufacturer and other available information as requested by the department, including, but not limited to, the concentration of the chemical in the product, the amount by volume or weight of the product that comprises the average daily application or use, and sales and use data necessary to determine where the product is used in the occupational setting. The department shall establish reasonable deadlines for the submittal of information required. Failure by a manufacturer to submit the information in compliance with the department's requirements constitutes a violation of this section and is subject to enforcement under RCW 69.04.060 and 69.04.070.
     (2)(a) If the department determines pursuant to an investigation that an ingredient in a cosmetic product is potentially toxic at the concentrations present in the product or under the conditions used, the department shall immediately refer the results of its investigation to the department of labor and industries.
     (b) Within one hundred eighty days after referral under (a) of this subsection, the department of labor and industries shall, pursuant to RCW 49.17.050, develop a standard to protect the health of an employee who has regular exposure to the hazard for the period of his or her working life, unless the department of labor and industries affirmatively determines, in a written finding made to the department within ninety days after referral, that a standard is not necessary to protect the health of such an employee. The finding shall identify the reasons for determining the standard is not necessary and the factual basis for the finding.

NEW SECTION.  Sec. 5   (1) The legislature finds that:
     (a) The cosmetic ingredient review panel is a nongovernmental body established and funded by the cosmetics industry to review the safety of cosmetic ingredients;
     (b) According to a 2005 analysis by the environmental working group, ninety-seven cosmetic products violate the cosmetic ingredient review panel's own safe use recommendations to manufacturers by containing an ingredient that the cosmetic ingredient review panel has found is not safe for the specific use indicated on the product's label; and
     (c) Federal regulations require every ingredient in a cosmetic product and every finished cosmetic product to be adequately substantiated for safety prior to marketing, and state that any ingredient or product whose safety has not been adequately substantiated prior to marketing is misbranded unless it displays a warning statement declaring, "The safety of this product has not been determined."
     (2) The department may, as early as feasible within existing resources, determine whether the products identified in subsection (1)(b) of this section have been adequately substantiated for safety pursuant to Sec. 740.10, Title 21, C.F.R. For any product adequately substantiated for safety, the department shall determine if the product contains any ingredient that the cosmetic ingredient review panel has found is not safe for the specific use indicated on the product's label. If the department finds that a product has been adequately substantiated for safety despite containing an ingredient that the cosmetic ingredient review panel has found is not safe for the specific use indicated on the product's label, the department shall refer its findings to the attorney general and the federal food and drug administration for possible enforcement action pursuant to RCW 69.04.060 and 69.040.070 and the federal food, drug, and cosmetic act, 21 U.S.C. Sec. 301 et seq.

Sec. 6   RCW 69.04.060 and 2003 c 53 s 314 are each amended to read as follows:
     Any person who violates any provision of RCW 69.04.040 or chapter 69.-- RCW (sections 1 through 5 and 8 of this act) is guilty of a misdemeanor and shall on conviction thereof be subject to the following penalties:
     (1) A fine of not more than two hundred dollars; or
     (2) If the violation is committed after a conviction of such person under this section has become final, imprisonment for not more than thirty days, or a fine of not more than five hundred dollars, or both such imprisonment and fine.

Sec. 7   RCW 69.04.070 and 2003 c 53 s 315 are each amended to read as follows:
     Notwithstanding the provisions of RCW 69.04.060, a person who violates RCW 69.04.040 or chapter 69.-- RCW (sections 1 through 5 and 8 of this act) with intent to defraud or mislead is guilty of a misdemeanor and the penalty shall be imprisonment for not more than ninety days, or a fine of not more than one thousand dollars, or both such imprisonment and fine.

NEW SECTION.  Sec. 8   This act may be known and cited as the Washington safe cosmetics act of 2007.

NEW SECTION.  Sec. 9   Sections 1 through 5 and 8 of this act constitute a new chapter in Title 69 RCW.