Key Takeaways

• What Happened: Washington’s Department of Ecology announced a rulemaking to implement the Toxic-Free Cosmetics Act.
• Who’s Impacted: Cosmetic product manufacturers, distributors, and retailers.
• What Should You Do: Review the draft regulation when it's available and provide comments by August 13, 2024.

Washington’s Toxic-Free Cosmetics Act (TFCA) prohibits the manufacture, sale, and distribution of cosmetic products containing certain added chemicals beginning January 1, 2025. One such chemical that will be prohibited is formaldehyde – but the TFCA does not expressly prohibit specific chemicals that release formaldehyde (known as formaldehyde releasers). Instead, the statute directed Washington’s Department of Ecology (Ecology) to identify formaldehyde releasers used in cosmetics. Ecology is currently undergoing rulemaking to implement the TFCA. Ecology plans to adopt a rule to identify formaldehyde releasers that will be restricted from use in cosmetics once identified.

The public comment period is open through August 13, 2024.

Background

Washington enacted the Toxic-Free Cosmetics Act on July 23, 2023. The legislature’s objective was to reduce the use of chemicals linked to harmful impacts on human health. The absence of federal regulation concerning chemicals in cosmetic products likely motivated Washington. Starting January 1, 2025, the TFCA will prohibit the use and distribution of the following added chemicals and chemical classes in cosmetic products:

• Ortho-phthalates
• Per- and poly-fluoroalkyl substances (PFAS)
• Formaldehyde and chemicals determined by Ecology to release formaldehyde
• Methylene glycol
• Mercury and mercury compounds
• Triclosan
• m-phenylenediamine and its salts
• o-phenylenediamine and its salts

On May 22, 2024, Ecology announced its intent to promulgate a rule identifying formaldehyde releasers and is accepting public comments to assist the process. Ecology will host a webinar on June 11, 2024 from 9 a.m. to 11 a.m. PDT to discuss and answer questions about the TFCA.

What Comes Next

Ecology will accept public comments through August 13, 2024. The Department will respond to significant comments and publish a draft rule in the Fall. Ecology anticipates the new rule will be adopted in the summer of 2025 but does not indicate when the prohibition on the manufacture and sale of cosmetics containing the chemicals identified as a formaldehyde releaser will begin.

Additional Product Regulations in Washington

This incoming rule is part of a larger system of regulations by Washington, which imposes strict regulations on products. The Safer Products for Washington program is a continuous program run by Washington’s Department of Ecology to regulate chemicals in consumer products. The program is currently conducting a rulemaking for Cycle 1.5 and beginning to identify priority chemicals for Cycle 2. In December 2023, Ecology published its draft report identifying nine consumer product categories facing PFAS regulatory determinations. The draft report, however, does not establish any regulations or restrictions on PFAS for those product categories. On May 30, 2024, Ecology published the final report that outlines regulatory determinations for PFAS in certain products. To learn more about the Safer Products for Washington’s cycles, see our previous news alert here.

Cosmetic product manufacturers and distributors should keep apprised of this process and provide comments before August 13, 2024. Those in the industry should also be prepared for the January 1, 2025 deadline set under the TFCA for the prohibition of the original chemicals. The deadline for this potential rule is not currently known, but cannot go into effect before January 1, 2026.

Beveridge & Diamond's Consumer Products industry group works with U.S. and multinational companies that make, distribute, transport, or sell consumer products in a hyper-competitive and evolving consumer goods market to help them identify, understand, and comply with complex regulatory requirements throughout the product lifecycle. B&D’s Chemicals Regulation practice group and Chemicals industry group provide strategic, business-focused advice to the global chemicals industry. With an office in Seattle , we closely track Washington regulatory developments and their impacts on stakeholders.