January 27, 2014

California Releases Cosmetic Ingredient Data Website with Little Fanfare, Less Explanation

Seller Beware: Consumer Protection Insights for Industry

In early January 2014, the California Department of Public Health made available an online database of information reported to it under the California Safe Cosmetics Act. Prompted by activists who are critical of what they consider to be lax federal regulation, this 2005 law requires manufacturers to report on ingredients in personal care products if they are among the over 850 chemicals that have been identified as possible carcinogens or reproductive toxicants by any of several scientific and regulatory bodies.

All of this information has long since been available to activists and interested members of the public through the California Public Records Act, but a fall 2013 budget rider provided funding for "a consumer-friendly, public Internet Web site" with explanation of key terms and links to relevant educational websites.

The program is one of a long line of policy initiatives that seek to disseminate information to consumers with the goal of ultimately prompting voluntary changes by companies without the need for more traditional forms of regulation. Washington State has a similar public database under its Children's Safe Products Act covering a much narrower list of chemicals and only those products -- including personal care products -- intended for children.

For the California database, almost 500 companies have submitted information on approximately 30,000 products to date. According to the Personal Care Products Council, which is the industry trade association, this information should already be found on product labels, and much if not all of it has been submitted to the US Food & Drug Administration under its Voluntary Cosmetic Reporting Program. That program works closely with the independent Cosmetic Ingredient Review, an industry-funded panel of scientists who review the safety of cosmetic ingredients. What's different is that the California program attempts to highlight ingredients for which animal studies have indicated even a possible connection to cancer or reproductive harm.

A large percentage of products reported in the California database relate to the ingredient titanium dioxide, which is commonly used in color cosmetics and sunscreens and widely considered by most scientists and regulators to be non-carcinogenic unless its particles are airborne, unbound, and small enough to be breathed deep into the lungs. Only this narrow form of the chemical is listed under California's stringent Proposition 65, but by a different agency from the agency implementing the Safe Cosmetics Act and its reporting requirements. That agency, the Safe Cosmetics Program of the California Department of Public Health (the Safe Cosmetics Program), has refused to limit its requirements to the form of the chemical listed under Proposition 65.

As noted on the Safe Cosmetics Program website, "Reporting is required regardless of the amount of the ingredient in the product." As a result, products containing chemicals at levels considered to pose no risk or at worst an acceptable risk under federal regulations are nevertheless included in the database.

The Safe Cosmetics Program website disclaimer goes on to state -- or perhaps to understate "Inclusion of a product in this database does not necessarily mean that it has been shown to cause harm." In fact, it is not clear that any of the products in the database has been shown to cause harm. As the cosmetics industry notes on its own educational website: "With more than 11 billion personal care products sold each year, and typically only 150 adverse experiences (mostly skin rashes or allergies) reported, cosmetics remain the safest category of products regulated by the FDA."

It remains to be seen whether these initiatives will result in consumers obtaining more useful information on which to base product choices or will serve as fodder for public relations campaigns, further regulatory initiatives, or even litigation.

© Arnold & Porter Kaye Scholer LLP 2014 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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