US states taking their own approach to cosmetic safety

US states taking their own approach to cosmetic safety

Whether due to frustration at the pace of MoCRA’s implementation or simply the desire to take a different approach towards regulating cosmetic safety, at least 17 states have passed or introduced their own laws governing cosmetic and personal care product safety according to state toxic-free laws.

The US Congress and Food and Drug Administration (FDA) lauded the Modernization of Cosmetics Regulation Act (MoCRA) when the latter was enacted in 2022. The MoCRA was designed to increase cosmetic safety and quality standards, and considerably expanded the FDA’s authority to regulate cosmetic manufacturing practices and impose registration/listing and adverse event reporting requirements. It also provided a mandate for the agency to issue new rules related to fragrance allergen labelling, among other provisions. Three years later, however, the FDA is yet to implement many rules and regulations that give teeth to MoCRA.

The beauty industry is still waiting on good manufacturing practices (GMP) regulations and fragrance allergen labelling requirements, and a final rule for testing of talc in asbestos-containing products, among other mandates under this legislation. The possibility of those regulations is also now in question. The regulatory freeze imposed by the Trump administration, coupled with federal hiring freezes and mass departures from the FDA in recent months, has further reduced the possibility of imminent changes under MoCRA.

Whether due to frustration at the pace of MoCRA’s implementation or simply the desire to take a different approach towards regulating cosmetic safety, at least 17 states have passed or introduced their own laws governing cosmetic and personal care product safety according to state toxic-free laws. While each state law has its own nuances, four key themes remain consistent with the states’ approach, namely focus on ingredients, scope, enforcement, and impact on industry.

In many states, toxic-free laws have already come into effect. For instance, California’s Toxic-Free Cosmetics Act, effective January 1, 2024, introduced similar bans and disclosure mandates. On the east coast, New York has already implemented a restriction on mercury and dioxane (above de minimis levels) in personal care products.

Beauty brands should closely evaluate the nuances of each state law against their product formulations in terms of compliance. While the patchwork of state laws presents a compliance burden, brands could consider conforming to the most restrictive state laws, or at a minimum, removing any substances that are consistently restricted across various state laws, while limiting sales in states with more rigorous requirements. Brands should work closely with their supply chain to ensure that all entities are aware of, and adhere to, the state law restrictions. Finally, brands (and retailers) should ensure that vendor agreements require state cosmetic law compliance for any products distributed or sold by the brand or retailer.