In 2023, the Washington legislature passed the Toxic-Free Cosmetics Act, which restricts the manufacture, distribution, and sale of cosmetic products that contain certain toxic chemicals within the state. The law also directs the Washington Department of Ecology to evaluate the hazards of chemicals with the same function as restricted chemicals that may be safer, provide technical support to small businesses that make or use cosmetic products, and identify and conduct a rulemaking to restrict chemicals that release formaldehyde. The law will go into effect on January 1, 2025, restricting nine toxic chemicals and chemical classes from cosmetic products from being made, distributed, or sold in Washington.
Several states have passed laws outside of Washington to restrict or ban certain ingredients in cosmetics, and each new law comes with its own unique set of rules and requirements, which can make it difficult for beauty brands to remain compliant across all 50 states. To help beauty industry professionals understand this new law and its requirements, the Independent Beauty Association (IBA) hosted a dedicated session with Shari Franjevic, the Toxic-Free Cosmetics Act Implementation Planner at the Washington State Department of Ecology. The session was included in IBA’s fall symposium, a two-day event covering timely and topical technical, regulatory, and sustainability matters. If you’re curious about what your beauty brand needs to do in order to remain compliant in the state of Washington as of January 1, 2025, here are some of the key insights Franjevic shared in her talk.
The Toxic-Free Cosmetics Act
The first bill on toxics and cosmetics was introduced to the Washington State Legislature in 2021 and didn’t pass. In 2022, a revised bill on this topic was introduced, but it was not passed either. Instead, the legislature funded the Washington Department of Ecology to conduct research and publish a report. In 2023, a second revised bill on the topic was introduced, and this time, it passed, and the Toxic-Free Cosmetics Act was signed into law in May 2023.
In addition to restricting the manufacture, distribution, and sale of cosmetic products that contain certain toxic chemicals within the state of Washington, the Toxic-Free Cosmetics Act also directs the Washington Department of Ecology to evaluate the hazards of chemicals with the same function as restricted chemicals that may be safer, provide technical support to small businesses that make or use cosmetic products, and identify and then conduct a rulemaking to restrict chemicals that release formaldehyde.
The law defines cosmetics the same way as the US Food and Drug Administration. Products, including perfume, shampoo, hair gel, body wash, deodorant, and toothpaste, are all considered cosmetic products. Beginning on January 1, 2025, it is prohibited to manufacture, distribute, or sell cosmetic products in Washington state that contain one or more of the nine specified chemicals or chemical classes when they're intentionally added to the product. In addition, lead is restricted when intentionally added, or when present from contamination or impurities at or above one part per million in the cosmetic product. For in-state retailers, restrictions on existing stock take effect January 1, 2026.
This law restricts five individual chemicals and four chemical classes. Chemicals include:
The chemical classes include:
Compliance Support
Under the law, the Washington State Department of Ecology offers technical assistance for regulated entities to help businesses comply with the new law. The agency developed a guidance document to help businesses determine whether your products meet the restrictions in the new law and has resources on its website to help brands reformulate, if needed, to meet the restrictions in the new law.
“We really see reformulation as an opportunity to not just avoid restricted chemicals, but actually formulate safer products,” says Franjevic.
The Department of Ecology offers custom technical support, which brands can get by contacting them by email. The agency is in the process of developing a Frequently Asked Questions document that primarily addresses common questions it receives about compliance, which they hope to publish soon.
Formaldehyde Releasers
The Toxic-Free Cosmetics Act permits the Department of Ecology to conduct a rulemaking to establish restrictions on chemicals that release formaldehyde. According to the law, the earliest these restrictions can take effect is January 1, 2026, for up to 10 chemicals used in cosmetics that release formaldehyde, and January 1, 2027 for additional chemicals used in cosmetics that release formaldehyde. This is the focus of the agency’s current rulemaking process, according to Franjevic. Formaldehyde releasers are linked to health impacts, including cancer, brain function harm, and asthma. The agency specifically looked at the products in the cosmetics category, and discovered that formaldehyde releasers are commonly found in products identified as being used more by people of color. In the Department of Ecology’s 2023 report to the legislature, the agency identified products used more frequently by women of color, which Franjevic says informed the chemicals outlined in the draft list of the top 10 formaldehyde releasers.
“People's exposure to chemicals are not equal,” says Franjevic. “Each of us has our own individual use patterns of products, and we use different products… and this is added onto other inequities, such as different environmental conditions and access to healthcare.”
The draft list of the top 10 formaldehyde releasers includes:
Seven formaldehyde releasers account for 99% of the formaldehyde releasers used in US products, and the listed above account for 99.6% of all formaldehyde releasers used in US products.
The Department of Ecology has been soliciting feedback on its list of formaldehyde releasers used in cosmetics, its definition of intentionally added, and the restriction dates. The agency hopes to propose a formal draft rule and start the formal comment period this November, and will likely host formal hearings in December. Franjevic encourages everyone who believes they might be impacted by the law and its restrictions to engage with the Department of Ecology and its process by attending hearings and sharing their comments.
Why the Toxic-Free Cosmetics Act Aims to Restrict Lead
The law also allows the agency to change the statutory lead limit through rulemaking. In the law, lead is restricted when intentionally added and when present at or above one part per million. This applies to impurities, residuals, and intentionally added lead sources.
“We have long understood that lead harms brain development, and as the understanding of lead toxicity has grown authoritative, scientific bodies have steadily reduced the amount considered safe,” says Franjevic.
She argues that lead exposure that was previously thought to be safe is now associated with health impacts, such as declines in IQ for children. The consensus now among authoritative bodies, including the World Health Organization and the U.S. Centers for Disease Control and Prevention, is that there is no known safe level of lead exposure, particularly during childhood.
“To protect human health and the environment, our goal is to reduce lead in cosmetic products to the lowest level possible,” says Franjevic. “The one part per million lead restriction is compatible with detection limits for analytical test methods. Product testing data, both from our agency and the U.S. Food & Drug Administration (FDA), demonstrate that the one part per million lead limit is indeed feasible.”
The Department of Ecology received three petitions to conduct rulemaking to change the statutory lead limit from one part per million to up to 10 parts per million, which the agency denied.
“To consider changing the lead limit set by the Washington State Legislature, we would need evidence that the one parts per million restriction is not achievable,” says Franjevic.
The Toxic-Free Cosmetics Act Implementation Plan
“Our vision is to equitably reduce exposure to toxic chemicals in cosmetic products and prevent releases of toxic chemicals from cosmetic products into the environment,” says Franjevic. “We are uniquely positioned to do so with levers built into the law in multiple places along the cosmetics value chain, including ingredient assessments to identify safer alternatives, product certification subsidies to help brands make and certify safer products, and our safer salon partnership program to help businesses purchase and use safer products.”
The Department of Ecology’s strategy is to use education, technical assistance, and financial incentives to create a demand pull for these safer products, thereby supporting a transition of the cosmetic sector towards using safer chemicals in products.
To address certain groups' disproportionate exposure to toxic chemicals and cosmetics, the Department of Ecology has integrated health equity into every aspect of implementing this law. The agency prioritizes organizations beyond compliance, organizations in overburdened communities, and products that benefit vulnerable populations when it comes to providing technical and financial assistance.
The Department of Ecology’s Safer Cosmetics Certification Subsidy program was created to help small cosmetics manufacturers obtain voluntary environmental health certifications for their cosmetics products by offering reimbursements for eligible businesses. Qualifying manufacturers seeking product certification can receive reimbursement up to 75% of the cost for the first $10,000 spent, 50% of the cost for $10,000 to $50,000 spent, and reformulation costs up to $2,500. The maximum reimbursement towards product certification is $30,000.
IBA encourages beauty brands to contact the Department of Ecology directly to help answer any questions regarding the nuances of the law or general compliance concerns.
FAQs
Will the state of Washington provide standard methods, or will brands need to develop and validate results themselves?
The Department does not prescribe any specific analytical test methods, but it provides information on the test methods it has used through the product testing they’ve done. It anticipates using similar test methods to support its compliance efforts when doing product testing. Additionally, companies are not required to test and send the test results to the Department of Ecology.
Is there a requirement for a company to implement a test methodology?
According to Franjevic, compliance strategies are really left to the organization. It's up to the brands to meet the law's restrictions, and how they go about doing that is up to the individual organization. The guidance document created by the Department of Ecology provides a series of strategies, and analytical testing is one strategy that brands can use to determine if their product complies with the law. Brands can also get transparent ingredient information through their supply chain and use certificates of analysis. “What we care about is that you comply with the law as it is written, and we're happy to provide support, guidance, technical assistance, but there aren't specific items, and you don't have to submit anything to the agency to demonstrate your compliance,” says Franjevic.
How will natural colorants be used if brands can’t have lead in cosmetics?
The one part per million lead threshold established by the Washington State Legislature is supported by data that shows that it's actually feasible. Franjevic says there are products on the market that meet this restriction, both through the testing her team did in Washington State and the testing that FDA did from 2010 to 2013 on various products. In testing done by the Department of Ecology, the agency found that 17 out of 20 cosmetic products had lead concentrations below the one parts per million threshold. When the agency looked at the 2010 study from the FDA of more than 400 cosmetic products, the average concentration of lead was 1.11 part per million, and about half of the products had lead levels below one part per million. While not every product in the market today has below one part per million lead, it is indeed feasible, states Franjevic.
If you know of a specific ingredient that is really struggling to meet that limit or a specific process, the Department of Ecology encourages you to share that information with them. “We want to work with manufacturers to support compliance,” says Marissa Smith at the Department of Ecology. “Compliance is our goal, not enforcement, and we only have the data that we have. If you have additional information, we really encourage you to reach out and share it with us.”
