We previously provided an update on legislation in Washington state that was proposing to ban cosmetics that contained PFAS in the state. The Washington PFAS ban for cosmetics received considerable attention and passed the state Senate, but failed to make it out of the House prior to the state adjourning its legislation period on March 11, 2022. The does not mean the end of the proposed ban in Washington; however, the bill will now be sent back to the Senate for committee consideration once the legislative session resumes.  Nevertheless, the proposed Washington PFAS ban for cosmetics is just the latest in the broad-sweeping PFAS-containing products ban bills that are increasing across the country. It is critical for companies anywhere in the manufacturing or supply chain for cosmetics to immediately assess the impact of the proposed PFAS ban for cosmetics on corporate practices, and make decisions regarding continued use of PFAS in products, as opposed to substituting for other substances.  At the same time, companies impacted by the PFAS legislation must be aware that the bills poses risks to the companies involvement in PFAS litigation in both the short and long term.

Washington’s Proposed PFAS Ban For Cosmetics

In 2021, Washington state introduced a bill (SB 5703) in its state Senate that sought to ban all PFAS from cosmetics sold in the state. In its intention, the bill mirrors a California bill (Assembly Bill 2771) in that it seeks to ban all types of PFAS from cosmetics products sold within the state. Washington’s definition of “cosmetic products” is more detailed than California’s: “(1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such article; except that such term shall not include soap.” Similar to California, the ban would take effect on January 1, 2025.

The California bill is still being actively discussed in the state legislature.

Impact of Proposed PFAS Ban On Businesses

While other states have introduced and/or passed legislation banning a small subset of PFAS in cosmetics (Maryland), banned all “intentionally added PFAS” to all consumer products (Maine), or taken steps to introduce legislation to ban PFAS in personal care products (six other states fall in this category), Washington’s bill was the farthest along in the legislative process, so it surprised many that the bill did not make it out of the House. While both Washington and California provide the cosmetics industry with close to three years to adapt their business practices under their bill proposals, the undertaking to do so will nevertheless be time consuming and costly.

It is of the utmost importance for businesses along the whole cosmetics supply chain to evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate these compounds. One major point of contention among members of various industries is whether to regulate PFAS as a class or as individual compounds.  While each PFAS compound has a unique chemical makeup and impacts the environment and the human body in different ways, some groups argue PFAS should be regulated together as a class because they interact with each other in the body, thereby resulting in a collective impact. Other groups argue that the individual compounds are too diverse and that regulating them as a class would be over restrictive for some chemicals and not restrictive enough for others.

Companies should remain informed so they do not get caught off guard. States are increasingly passing PFAS product bills that differ in scope. For any manufacturers, especially those who sell goods interstate, it is important to understand how those various standards will impact them, whether PFAS is regulated as individual compounds or as a class. Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long term savings for companies and should be commonplace in their own risk assessment.