Safer Products for Washington. In 2019, the Legislature established an administrative process for the regulation by the Department of Ecology (Ecology) of priority chemicals in priority consumer products. Under this process, certain chemicals were defined as priority chemicals, including perfluoroalkyl and polyfluoroalkyl substances (PFAS), polychlorinated biphenyls—PCBs, phthalates, organohalogen 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 they meet qualifying criteria, consistent with a schedule established in the 2019 law.
Every five years, according to a specified schedule, Ecology must also:
Regulatory actions may include a determination that no action is needed; may require manufacturers to provide notice of the use of a chemical; or may restrict or prohibit the manufacture, distribution, sale, or use of a priority chemical in a consumer product.
Ecology is required to make regulatory determinations for the initial round of statutorily designated priority chemicals and their associated priority consumer products by June 1, 2022, and must adopt rules to implement those regulatory determinations by June 1, 2023.
In its 2022 report, Ecology determined reporting requirements or restrictions for the use of the following priority chemicals in priority consumer products:
Cosmetics Regulation. Cosmetics marketed in the United States must be in compliance with 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.
Washington State has enacted restrictions on the adulteration and misbranding of cosmetic products under the state's Intrastate Commerce in Drugs and Cosmetics code (ICDC), in a manner that conforms with the FDCA and the FPLA. Under the ICDC, 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.
Restrictions on Chemicals in Cosmetics. Beginning January 1, 2025, no person may manufacture, sell, or distribute in this state any cosmetic product that contains any of the following intentionally added chemicals or chemical classes:
Beginning January 1, 2025, no person may manufacture, sell, or distribute in this state any cosmetic product that contains intentionally added lead or lead compounds, lead or lead compounds at one part per million or above, or as otherwise determined by Ecology through rule making.
Cosmetic products are defined in the same manner as cosmetics regulated under the ICDC, except that prescription drugs approved by the FDA are excluded. Restricted chemicals are restricted in cosmetics regardless of whether the product also contains drug ingredients, but any ingredients regulated as drugs by the FDA are not subject to the restrictions.
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 the restrictions. Ecology's determinations of chemicals that release formaldehyde must be adopted by rule. Prior to commencing rule making under the act, Ecology must engage with relevant stakeholders to ensure the availability of adequate expertise and input. The stakeholder process should include soliciting input from representatives from independent cosmetologists, small businesses offering cosmetology services, and small manufacturers of cosmetic products. The input received from stakeholders must be considered when adopting rules.
Manufacturers that produce a product or distribute the product in or into Washington that violate a requirement, rule, or order are subject to civil penalties 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 Pollution Control Hearings Board. Penalties are deposited in the Model Toxics Control Operating Account.
Hazard Assessment. By June 1, 2024, Ecology, in consultation with the Department of Health, must use existing information to identify and assess the hazards of chemicals or chemical classes that can provide the same or similar function in cosmetic products as the restricted chemicals or chemical classes and that can impact vulnerable populations.
Cosmetic Product Business Initiatives. By May of 2024, Ecology must implement an initiative to support small businesses to obtain voluntary environmental health certifications implemented by the United States Environmental Protection Agency or other programs determined by Ecology to be designed to identify cosmetic products without identified hazards, consistent with processes used to identify safer alternatives under the Safer Products for Washington Program. The initiative may include technical assistance, resources for chemical hazard assessments, and resources for reformulating products.
By May of 2024, Ecology must implement an initiative to support independent cosmetologists and small businesses that provide cosmetology services in efforts to transition to using safer cosmetic products. The initiative may include technical assistance, resources for identifying safer cosmetic products, and resources for financial incentives to eligible participants to replace cosmetic products containing toxic chemicals, disposal programs, and the use of safer products.
The committee recommended a different version of the bill than what was heard. PRO: The chemicals we're talking about are things we know are bad and have been studied, including the negative health impacts from these products. We know there are safe alternatives on the market already. Some of the worst products are those that are marketed to people of color. A lot of companies are already doing this proactively and affordable alternatives are already on the market.
The bill is an important public health measure to prevent the use of unnecessary toxic chemicals in cosmetic products associated with harmful health effects. Studies show women of color are disproportionately impacted by chemicals in cosmetic products. We are particularly concerned about formaldehyde releasing agents. Lead is also found in cosmetics, and there is no safe level for this chemical. It is possible to have cosmetics without toxics. We need the Legislature to act to make products safer.
PFAS contamination is an equity issue. Both state and federal governments can do more to help overburdened communities. Women of color are more vulnerable and have more exposure to these persistent and toxic chemicals, and are further impacted by cumulative effects in the environment.
We should be able to purchase and use products with great confidence and be assured that we are not using products with toxic agents. As a consumer, we would never knowingly purchase these products. Passing this bill lets communities know that the Legislature recognizes the danger in these chemicals. It is unconscionable that product manufacturers not required to disclose ingredients and not held to higher safety standards.
We put the onus on the consumer and they're not able to know what they're exposed to because the ingredients are not labeled.
Toxics in cosmetics creates gender equities and disproportionate cultural impacts. Eyeliners used by immigrant and refugee populations cause disproportionate exposure to lead. Products are also washed off, but treatment plants are not able to filter these chemicals that end up in the environment. Costs are borne by the public, when it should be on the producers. Chemicals should be removed before people are exposed and the public is forced to bear the costs.
CON: We applaud efforts on cosmetics modernization to increase federal regulatory oversight. The law was passed late in 2022 and we ask that you pause on passing this until implementation begins. This bill does not follow best available science or practices in the EU. We oppose inclusion of formaldehyde releasing agents used to preserve the safety and integrity of products. FRAs are considered widely safe and effective against contamination from biological contaminants. If products are not preserved, they can become moldy with odors.
Businesses are concerned about the inclusion of FRAs, and the safety issues needed to keep these in products as preservatives. We are also concerned about the broad inclusion of the aerosol propellant in the bill.
Given the broad definition of PFAS, hydrofluoroolefins would be banned. Unlike other PFAS chemistries, these have been thoroughly reviewed by EPA as safe, with low global warming potential. We would like to see these excluded if approved by EPA, with the exclusion set to expire if they ever lose EPA approval.
OTHER: Cosmetics require extra scrutiny because they are put directly on bodies and when washed off go into the environment. In a recent study, chemicals were found in many of the products tested. The presence of lead was particularly concerning in products. Formaldehyde was present as either intentionally added or from a chemical that releases it over time. When the releasers are used, people are exposed to formaldehyde from the product. The bill furthers equity and environmental justice and toxic reduction work.
The Department of Health supports the concept of this bill. The bill is not just about makeup. Cosmetics include personal care products that we all use. They can contain harmful chemicals and we can be exposed through skin, ingestion, and breathing in the chemicals. By banning the chemicals, it ensures safer products in Washington and reduces exposure to users. There is no reason for lead to be present in cosmetics. We are also concerned about exposure to formaldehyde. This is an opportunity to address the environmental justice issue of disproportionate exposure in products marketed to women of color.
We are supportive of underlying goal. Cosmetologists recognize the need to balance public health with the needs of commerce. We support banning the majority of the chemicals listed, but there is not enough research to support banning FRAs, which has not yet been done in the EU or in California. There needs to be more research done on FRAs. We would like more study on the impacts to the global supply chain and small businesses.