Join Duane Morris attorney Kelly Bonner as she discusses America’s complex system of cosmetics regulation on the award-winning beauty podcast, Fat Mascara, hosted by Jennifer Sullivan (beauty columnist, The Cut) and Jessica Matlin (beauty director, Moda Operandi).
Links to Episode 474: How Cosmetics Are Regulated, with Kelly Bonner, below
On January 1, 2023, New York became the tenth state to ban the sale of cosmetics tested on animals.
The New York Cruelty Free Cosmetic Act (“NYCFCA”), which took effect on January 1, 2023, prohibits manufacturers from importing for profit, selling, or offering to sell any cosmetic or ingredient in the state for which the manufacturer knew or reasonably should have known that animal testing was performed by or on behalf of the manufacturer, or manufacturer’s supplier, if the animal testing was conducted after January 1, 2023. Continue reading “New York Bans Animal Testing on Cosmetics”
On December 23, 2022, Congress significantly expanded the FDA’s regulatory authority over cosmetics as part of its year-end Consolidated Appropriations Act of 2023, the first major statutory change to the Food, Drug and Cosmetics Act regarding the regulation of cosmetics since 1938. Passed with bipartisan support and garnering industry approval, the Modernization of Cosmetics Regulation Act contains a number of key provisions, requirements and dates for compliance.
In a significant decision for retailers, Judge Manish Shah of the U.S. District Court for the Northern District of Illinois recently denied in part Defendant Estée Lauder’s motion to dismiss proposed class action claims that its consumer “try-on” technology violated the Illinois Biometric Information Privacy Act (“BIPA”). The Court rejected Defendant’s personal jurisdiction argument, as well as claims that its website terms and conditions required Plaintiff to arbitrate her dispute, and that Plaintiff lacked standing to sue on behalf individuals that used websites Plaintiff herself did not visit. In a decision entitled Kukovec v. The EstéeLauder Companies, Inc., Case No. 22-CV-1988 (N.D. Ill.), the Court determined, however, that Plaintiff did not sufficiently plead that the cosmetics giant intentionally or recklessly violated consumers’ biometric privacy rights, and thereby dismissed those claims. The ruling in Kukovec illustrates the ongoing legal risks for retailers in using “try-on” tech to enhance customer service.
ShortDot, a domain name registry company, has announced the launch of .cfd (#ClothingFashionDesign), a specialized generic top-level domain (gTLD) for clothing brands, fashion designers, retailers, influencers, bloggers, consumers and lifestyle ecommerce stores. TLDs were developed in the 1980s and have unique purposes (e.g., .com, commercial; .org, nonprofit organizations; .net, network and internet-related organizations; .edu, educational; .gov, government entities). ShortDot’s webpage for registering the new domain states:
By providing a memorable, unique, and relevant web address, .CFD offers clothing, fashion, cosmetics, and footwear brands and designers a unique opportunity to strengthen their web presence.
On January 29, 2020, President Trump signed the U.S.-Mexico-Canada Agreement (USMCA) into law, with key commitments impacting the personal care products sector.
The 2,082-page pact, which updates the 26-year-old North American Free Trade Agreement (NAFTA), comes after more than two years of negotiations, and was overwhelmingly ratified by the U.S. Senate on January 16, 2020.
Significantly, the USMCA contains a new Cosmetic Products Annex, which promotes greater regulatory compatibility and shared best regulatory practices in the personal care products sector.
On January 9, 2020, the U.S. Food and Drug Administration announced that it will host an all-day public forum to discuss testing methods for asbestos in talc and cosmetic products containing talc on February 4, 2020.
According to the FDA, the purpose of the meeting is to discuss testing methods, terminology, and criteria that can be used to characterize and measure asbestos, as well as what the FDA preliminarily states may be “other potentially harmful elongate mineral particles (EMPs)” that may contaminate talc and cosmetics products that contain talc.
In recent months, reports of asbestos-contaminated cosmetics have illustrated the enduring challenges of manufacturing and marketing cosmetics as safe for consumers, particularly teens, children and expectant mothers. This is especially true where still-developing science, emotion and rapidly disseminated information (and misinformation) all play critical roles in shaping public perception, even influencing jury outcomes.
This article explores the potential legal challenges for supply chain participants arising from contaminated cosmetics, as well as significant proposals to change the way the U.S. Food and Drug Administration regulates cosmetic safety.
The Relationship Between Talc and Asbestos
Talc, also known as talcum or magnesium silicate, is a naturally occurring silicate mineral mined from underground deposits. Because talc is the softest mineral known to man, it has been used in cosmetics manufacturing for centuries.