Ernest Fung, Annaleise Conway, and Lisa Tolbert of environmental consulting group Integral contributed to this article after presenting a webinar on the Toxic-Free Cosmetics Act on March 5 with Clark Hill attorney Tracy Williams.
1. The Toxic-Free Cosmetics Act (“TFCA”) restricts nine chemicals or chemical classes.
The TFCA restricts nine chemicals or chemical classes from cosmetic products made, distributed, or sold in Washington. The restriction went into effect on Jan.1, 2025. However, for in-state retailers, existing stock of cosmetic products that contain these restricted chemicals may be exhausted through sales to the public until Jan. 1, 2026.
The restricted chemical or chemical classes are: (1) formaldehyde, (2) lead and lead compounds, (3) mercury and mercury compounds, (4) methylene glycol, (5) ortho-phthalates, (6) per- and polyfluoroalkyl substances (PFAS), (7) m-phenylenediamine and its salts, (8) o-phenylenediamine and its salts, and (9) triclosan. These chemicals can be found in items like lipstick, hair straighteners, and conditioners.
2. The TFCA applies to “Cosmetics.”
The TFCA defines “cosmetics” as: anything intended to be used on the human body for the purpose of “cleansing, beautifying, promoting attractiveness, or altering the appearance.” Examples of “cosmetics” include makeup, deodorant, body wash, and shampoo. The TFCA does not apply to soaps, prescription drugs, or over-the-counter medications.
3. Businesses that manufacture, distribute, sell, or use cosmetic products must comply with the TFCA.
Any business that manufactures, distributes, sells, or uses cosmetic products in Washington must comply with the TFCA. These businesses include: (1) cosmetics manufacturers, (2) brands, (3) distributors, (4) retailers, (5) cosmetologists, and (6) cosmetology businesses, such as hair and nail salons.
4. The Washington Department of Ecology has started the rulemaking process for Formaldehyde.
In February 2025, the Washington Department of Ecology (Ecology) issued a draft proposed rule addressing formaldehyde and 28 formaldehyde releasers. If adopted, the rule would restrict formaldehyde and formaldehyde releasers that are intentionally used in cosmetic products. Ecology will accept public comments on the proposed rule until April 11, 2025.
5. Ecology has issued an interim policy addressing lead and lead compounds.
Ecology issued an interim policy on lead in cosmetics for manufacturers unable to achieve a lead concentration below 1 part per million (ppm). Under the interim policy, Ecology will not enforce compliance with the 1 ppm limit on lead in cosmetic products where certain conditions are met.
The interim policy took effect on Jan. 1, 2025. It will remain in effect until a final rule is adopted, the policy is repealed, or Dec. 31, 2026, whichever comes first.
6. The TFCA does not define “Intentionally Added.”
The TFCA restricts nine chemicals or chemical classes from being “intentionally added” to cosmetic products; however, a definition for “intentionally added” is not provided within the TFCA. Within Washington’s Safer Products Restrictions and Reporting, “intentionally added” is defined as “a chemical that serves an intended function in the final product or in the manufacturing of the product or part of the product.” This does not include chemicals present through the use of recycled materials.
7. Product testing should be done with careful consideration.
Product testing should take into consideration the quality and qualifications of the laboratory conducting the testing, the testing protocol, and the analytical methods. The limit of detection and limit of quantification of analytical results may impact the ability to make conclusions about exposure, risk, or lack thereof.
8. Presence does not equate to risk and claims do not equate to noncompliance or liability.
Testing done by regulatory agencies, public attorneys, or private law firms may show the presence of restricted chemicals in a product. Under the current framework, unintentionally added restricted chemicals are permitted at any concentration except for lead. If claims suggest risk or harm due to the presence of these chemicals, exposure or risk assessment may be appropriate for product defense. These strategies require a business to understand the chemicals present in their product and potential exposure routes from the intended use of the product.
9. The TFCA is in its infancy and may evolve over time. Experience with proposition 65 may provide insight into the TFCA’s future.
Ecology may establish additional chemicals, chemical classes, and presence thresholds as the TFCA develops. Proposition 65 in California provides safe harbor levels for several chemicals and chemical classes in a wide range of products. This act is well-established and experience with product claims for Proposition 65 may provide techniques and avenues to explore for potential future TFCA claims.
This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.
Subscribe for the latest
Subscribe