Overview
California is cleaning up the cosmetics aisle yet again. Last week, the state legislature passed Assembly Bill 496, which will newly ban the “manufacturing, selling, delivering, holding or offering for sale in commerce any cosmetic product” in the State of California that contains any one of 26 “intentionally added” targeted ingredients. California had already banned 24 chemicals from personal care products with the Toxic-Free Cosmetics Act taking effect January 1, 2025, and – beginning January 1, 2027 – the new bill will supplement that list with an additional 26 prohibited chemicals that can be found in products such as fragrance, hair dyes, and nail polish.
Sponsored by the Environmental Working Group, the bill aims to prohibit ingredients already banned by the European Union and reportedly linked to certain hazards and risks, but not yet banned anywhere else in the United States. Although California is yet again leading the charge, the bill’s influence will ultimately reach far beyond state lines. Because California’s economy is the largest in the country, and companies are essentially unable to control where their products are sold, most affected businesses will be forced to reformulate all products regardless of their intended destination. Inevitably, the bill will create a global impact that bolsters California’s reputation as an industry disruptor, and continue to blur the lines between Federal and State regulatory schemes.
Also destined to raise disputes is how, exactly, a company can effectively demonstrate that an ingredient was not “intentionally added,” particularly in the case of PFAS, which have been dubbed “forever chemicals” in part because they are ubiquitous in the environment. Yet another potential source of confusion is the bill’s exception for “unavoidable trace” quantities of an ingredient that stem from impurities, manufacturing, storage, or migration from packaging. This ambiguous language calls to mind another California regulation, Proposition 65, and the so-called “naturally occurring” exemption, which is infamous for being virtually impossible to prove in practice and, thus, illusory. Time will tell if the exceptions in AB 496 are similarly unforgiving.
For an industry already awash in regulation reform, the latest bill adds to the growing pressure on cosmetics companies to reformulate, not to mention the significant costs, time and resources associated. In 2022, the state passed the California PFAS-Free Cosmetic Act (Assembly Bill 2771), which banned the entire class of per- and polyfluorinated substances (PFAS) from personal care and beauty products sold in California. This broadened the ban of PFAS previously covered under the Toxic-Free Cosmetic Act and is another California law that is already making nationwide waves in advance of it taking effect on January 1, 2025.
Companies up and down the supply chain now have a little over one year to prepare for and begin complying with the first wave of implementation, and another two years thereafter to address and phase out the additional 26 ingredients added by AB 496.
