Safer Products for Washington.
In 2019 legislation was enacted (Safer Products for Washington) that established an administrative process for the regulation by the Department of Ecology (Ecology) of priority chemicals in priority consumer products, in consultation with the Department of Health. Under this process, certain chemicals were defined as priority chemicals, including perfluoroalkyl and polyfluoroalkyl (PFAS) chemicals, polychlorinated biphenyls, phthalates, organ halogen flame retardants and other flame retardants identified under the Children's Safe Products Act, and phenolic compounds. Ecology is also authorized to designate additional chemicals as priority chemicals every five years, if the chemicals meet qualifying criteria, consistent with a schedule established in the 2019 law.
Under the schedule for Ecology's regulatory activities to implement Safer Products for Washington, Ecology must:
Cosmetics marketed in the United States must be in compliance with the provisions of the Federal Food, Drug, and Cosmetic Act (FDCA), the Fair Packaging and Labeling Act (FPLA), and regulations published under the authority of these laws. The FDCA prohibits the distribution of cosmetics which are adulterated or misbranded. Cosmetics must also comply with labeling regulations published by the Food and Drug Administration (FDA) under the authority of the FDCA and the FPLA.
The State of Washington has enacted restrictions on the adulteration and misbranding of cosmetic products under the state's Intrastate Commerce in Drugs and Cosmetics code, in a manner that conforms with the FDCA and the FPLA. Under the Interstate Commerce in Drugs and Cosmetics code, cosmetics are defined as articles intended to be applied to the human body for cleansing, beautifying, promoting attractiveness, or altering appearances, and articles intended for use as a component of articles applied to the human body for such purposes. Soap is excluded from the definition of cosmetics.
Pollution Control Hearings Board.
The Pollution Control Hearings Board (PCHB) is an appeals board with jurisdiction to hear appeals of certain decisions, orders, and penalties issued by Ecology and several other state agencies. Parties aggrieved by a PCHB decision may obtain subsequent judicial review. Penalties appealable to the PCHB must generally be imposed following standard general protocols, including that the penalty must be accompanied by a notice in writing describing the violation, and specifying when the penalty must be appealed or else becomes due and payable. With some exceptions, penalties that are appealable to the PCHB are credited to the State General Fund.
Restrictions on Chemicals in Cosmetics.
Beginning January 1, 2025, the manufacture, distribution, and sale of cosmetic products with nine types of chemicals or chemical classes are prohibited. Cosmetic products are defined in the same manner as cosmetics regulated under the Interstate Commerce in Drugs and Cosmetics code, except that prescription drugs approved by the FDA are excluded from the regulated cosmetic products, as are hydrofluoroolefins used as aerosol propellants. Cosmetic products may not include the following eight categories of chemicals or chemical classes when intentionally added to the product:
Lead or lead compounds are also similarly restricted in cosmetic products, at a level of 10 parts per million unless Ecology determines otherwise through rulemaking.
In-state retailers may exhaust their existing stock of restricted products through sales to the public until January 1, 2026.
Ecology may adopt rules to implement, administer, or enforce restrictions on chemicals in cosmetic products. Manufacturers violating a requirement, rule, or order are subject to civil penalties of up to $5,000 per violation for a first offense, or $10,000 per violation for each repeat offense. Penalties and orders issued by Ecology are appealable to the PCHB. Penalties are deposited in the Model Toxics Control Operating Account.
Community Engagement Plan.
By December 1, 2022, Ecology must create and adopt a community engagement plan, in consultation with the Department of Health. The plan must:
The striking amendment:
(In support) Banning PFAS and other harmful chemicals is an important step towards safer cosmetics. Many of these chemicals have been banned in cosmetics by other states. The departments of Ecology and Health would be required to test products for toxic content, do community outreach, and, if appropriate, consider additional regulations under the Safer Products for Washington program.
(Other) Changes have already been made to address business community concerns, but a few further changes would make the bill better. To ensure that state laws are consistent with other laws, formaldehyde-releasing agents should have a consistent definition. Any drugs regulated by the FDA, whether over-the-counter or prescription, should not be subject to additional state restrictions on chemicals used in cosmetic products.