CERTIFICATION OF ENROLLMENT

SUBSTITUTE HOUSE BILL 1047

Chapter 455, Laws of 2023

68TH LEGISLATURE

2023 REGULAR SESSION

COSMETIC PRODUCTS—TOXIC CHEMICALS

EFFECTIVE DATE: July 23, 2023

SUBSTITUTE HOUSE BILL 1047

AS AMENDED BY THE SENATE

ByHouse Environment & Energy (originally sponsored by Representatives Mena, Ryu, Berry, Simmons, Duerr, Goodman, Bateman, Reed, Fitzgibbon, Ramel, Doglio, Orwall, Macri, Gregerson, Thai, Stonier, Santos, Riccelli, and Ormsby)

AN ACT Relating to the use of toxic chemicals in cosmetic products; amending RCW 43.21B.110 and 43.21B.300; adding a new chapter to Title 70A RCW; and prescribing penalties.

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

(2) In order to ensure the safety of cosmetic products and protect Washington residents from toxic exposures, the legislature intends to prohibit use of toxic chemicals found in cosmetic and personal care products and join other jurisdictions in creating a safer global standard for cosmetic products and bringing more sustainable, safer ingredients to the marketplace.

(1) "Cosmetic product" has the same meaning as the term "cosmetic" as defined in RCW 69.04.011.

(2) "Department" means the department of ecology.

(3) "Manufacturer" has the same meaning as defined in RCW 70A.350.010.

(4) "Ortho-phthalates" means esters of ortho-phthalic acid.

(5) "Perfluoroalkyl and polyfluoroalkyl substances" has the same meaning as defined in RCW 70A.350.010.

(6) "Small business" has the same meaning as defined in RCW 70A.500.020.

(7) "Vulnerable populations" has the same meaning as defined in RCW 70A.02.010.

(a) Ortho-phthalates;

(b) Perfluoroalkyl and polyfluoroalkyl substances;

(c) Formaldehyde (CAS 50-00-0) and chemicals determined by the department to release formaldehyde;

(d) Methylene glycol (CAS 463-57-0);

(e) Mercury and mercury compounds (CAS 7439-97-6);

(f) Triclosan (CAS 3380-34-5);

(g) m-phenylenediamine and its salts (CAS 108-45-2); and

(h) o-phenylenediamine and its salts (CAS 95-54-5).

(2) Except as provided in subsection (3) of this section, beginning January 1, 2025, no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this state any cosmetic product that contains intentionally added lead or lead compounds (CAS 7439-92-1), lead or lead compounds at one part per million (ppm) or above, or as otherwise determined by the department through rule making.

(3) An in-state retailer in possession of cosmetic products on the date that restrictions on the sale of the products takes effect under this section may exhaust its existing stock through sales to the public until January 1, 2026.

(4) By June 1, 2024, the department, 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 chemicals or chemical classes listed in subsection (1) of this section and that can impact vulnerable populations. The department must make the information publicly available.

(5)(a) By May 2024, the department shall implement an initiative to support small businesses that manufacture cosmetic products in efforts to obtain voluntary environmental health certifications for cosmetics implemented by the United States environmental protection agency or other programs, as determined by the department, that are designed to identify cosmetic products that do not contain identified hazards consistent with processes used to identify safer alternatives under chapter 70A.350 RCW.

(b) The initiative may include, but is not limited to, providing:

(i) Technical assistance and support;

(ii) Resources for chemical hazard assessments; and

(iii) Resources for reformulating products.

(6)(a) By May 2024, the department shall implement an initiative to support independent cosmetologists and small businesses that provide cosmetology services, such as beauty salons, in efforts to transition to using safer cosmetic products.

(b) The initiative may include, but is not limited to, providing:

(i) Technical assistance and support;

(ii) Resources for identifying safer cosmetic products; and

(iii) Resources for financial incentives to eligible participants to replace cosmetic products containing toxic chemicals, disposal programs, and the use of safer products.

(7)(a) For the purposes of this section, cosmetic products do not include prescription drugs approved by the United States food and drug administration.

(b) The chemicals in subsection (1) of this section are restricted in cosmetics regardless of whether the product also contains drug ingredients regulated by the United States food and drug administration. For purposes of this section, ingredients regulated as drugs by the United States food and drug administration are not subject to the restrictions established in this section.

(2)(a) The department's determinations of chemicals that release formaldehyde must be adopted by rule. The department must identify a list of chemicals used in cosmetics that release formaldehyde that may be subject to restriction under this chapter. In establishing this list, the department should consider:

(i) Estimated prevalence of use;

(ii) Potential to reduce disproportionate exposure; and

(iii) Other information deemed relevant by the department.

(b) The department may identify for restriction an initial set of no more than 10 of the listed chemicals used in cosmetics that release formaldehyde. This restriction must take effect on or after January 1, 2026.

(c) Restrictions on the remaining listed chemicals used in cosmetics that release formaldehyde may take effect on or after January 1, 2027.

(d) The department may, but is not required to, conduct additional rule-making activities after January 1, 2027, including developing supplemental lists of chemicals that release formaldehyde and adopting additional restrictions.

(3) Prior to commencing rule making under this chapter, the department must engage with relevant stakeholders to ensure the availability of adequate expertise and input. The stakeholder process should include, but is not limited to, soliciting input from representatives from independent cosmetologists, small businesses offering cosmetology services, such as beauty salons, and small manufacturers of cosmetic products. The input received from stakeholders must be considered when adopting rules.

(4) A manufacturer that produces a product or imports or domestically distributes a product in or into Washington in violation of a requirement of this chapter, a rule adopted under this chapter, or an order issued under this chapter, is subject to a civil penalty not to exceed $5,000 for each violation in the case of a first offense. Manufacturers who are repeat violators are subject to a civil penalty not to exceed $10,000 for each repeat offense.

(5) Any penalty provided for in this section, and any order issued by the department under this chapter, may be appealed to the pollution control hearings board.

(6) All penalties collected under this chapter shall be deposited in the model toxics control operating account created in RCW 70A.305.180.

Sec. 5. RCW 43.21B.110 and 2022 c 180 s 812 are each amended to read as follows:

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, the air pollution control boards or authorities as established pursuant to chapter 70A.15 RCW, local health departments, the department of natural resources, the department of fish and wildlife, the parks and recreation commission, and authorized public entities described in chapter 79.100 RCW:

(a) Civil penalties imposed pursuant to RCW 18.104.155, 70A.15.3160, 70A.300.090, 70A.20.050, 70A.530.040, 70A.350.070, 70A.515.060, 70A.245.040, 70A.245.050, 70A.245.070, 70A.245.080, 70A.65.200, 70A.455.090, section 3 of this act, 76.09.170, 77.55.440, 78.44.250, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70A.15.2520, 70A.15.3010, 70A.300.120, 70A.350.070, 70A.245.020, 70A.65.200, section 3 of this act, 86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.

(c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70A.205.260.

(d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70A.205 RCW.

(e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70A.226.090.

(f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70A.205.145.

(g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

(h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(i) Decisions of the department of natural resources, the department of fish and wildlife, and the department that are reviewable under chapter 76.09 RCW, and the department of natural resources' appeals of county, city, or town objections under RCW 76.09.050(7).

(j) Forest health hazard orders issued by the commissioner of public lands under RCW 76.06.180.

(k) Decisions of the department of fish and wildlife to issue, deny, condition, or modify a hydraulic project approval permit under chapter 77.55 RCW, to issue a stop work order, to issue a notice to comply, to issue a civil penalty, or to issue a notice of intent to disapprove applications.

(l) Decisions of the department of natural resources that are reviewable under RCW 78.44.270.

(m) Decisions of an authorized public entity under RCW 79.100.010 to take temporary possession or custody of a vessel or to contest the amount of reimbursement owed that are reviewable by the hearings board under RCW 79.100.120.

(n) Decisions of the department of ecology that are appealable under RCW 70A.245.020 to set recycled minimum postconsumer content for covered products or to temporarily exclude types of covered products in plastic containers from minimum postconsumer recycled content requirements.

(o) Orders by the department of ecology under RCW 70A.455.080.

(2) The following hearings shall not be conducted by the hearings board:

(a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

(b) Hearings conducted by the department pursuant to RCW 70A.15.3010, 70A.15.3070, 70A.15.3080, 70A.15.3090, 70A.15.3100, 70A.15.3110, and 90.44.180.

(c) Appeals of decisions by the department under RCW 90.03.110 and 90.44.220.

(d) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.

Sec. 6. RCW 43.21B.300 and 2022 c 180 s 813 are each amended to read as follows:

(1) Any civil penalty provided in RCW 18.104.155, 70A.15.3160, 70A.205.280, 70A.300.090, 70A.20.050, 70A.245.040, 70A.245.050, 70A.245.070, 70A.245.080, 70A.65.200, 70A.455.090, section 3 of this act, 88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102 and chapter 70A.355 RCW shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department or the local air authority, describing the violation with reasonable particularity. For penalties issued by local air authorities, within 30 days after the notice is received, the person incurring the penalty may apply in writing to the authority for the remission or mitigation of the penalty. Upon receipt of the application, the authority may remit or mitigate the penalty upon whatever terms the authority in its discretion deems proper. The authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.

(2) Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department or authority 30 days after the date of receipt by the person penalized of the notice imposing the penalty or 30 days after the date of receipt of the notice of disposition by a local air authority of the application for relief from penalty.

(3) A penalty shall become due and payable on the later of:

(a) Thirty days after receipt of the notice imposing the penalty;

(b) Thirty days after receipt of the notice of disposition by a local air authority on application for relief from penalty, if such an application is made; or

(c) Thirty days after receipt of the notice of decision of the hearings board if the penalty is appealed.

(4) If the amount of any penalty is not paid to the department within 30 days after it becomes due and payable, the attorney general, upon request of the department, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within 30 days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.

(5) All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70A.15.3160, the disposition of which shall be governed by that provision, RCW 70A.245.040 and 70A.245.050, which shall be credited to the recycling enhancement account created in RCW 70A.245.100, RCW 70A.300.090 and section 3 of this act, which shall be credited to the model toxics control operating account created in RCW 70A.305.180, RCW 70A.65.200, which shall be credited to the climate investment account created in RCW 70A.65.250, RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390, and RCW 70A.355.070, which shall be credited to the underground storage tank account created by RCW 70A.355.090.

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