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California has enacted a new law requiring cosmetics manufacturers to annually submit to the state information about more than 750 chemicals. The California Safe Cosmetics Act of 2005 requires reports to be submitted beginning in January 2007. The law will be administered by the Division of Environmental and Occupational Disease Control (DEODC) of the California Department of Health Services.
Disclosure
The law’s key operative provision requires companies with aggregate worldwide sales of cosmetics over $1 million to prepare a report listing any cosmetic products sold in the state that contain ingredients identified as causing cancer or reproductive harm. Submissions must include the name of each chemical and any products containing that chemical. Chemicals covered include those listed under California’s Proposition 65, as well as other chemicals that meet criteria set by other toxics research entities.
Investigation
The DEODC is authorized to investigate the safety of any products containing listed ingredients. Pursuant to any investigation, manufacturers must submit data concerning the product’s health effects, formulation, use and sales. The DEODC does not appear to be able to require manufacturers to perform additional tests to determine a product’s safety – instead, any existing information may be submitted.
Regulation
The DEODC may refer the results of its investigation to the California Division of Occupational Safety and Health (Cal OSHA) upon determination that an ingredient is potentially hazardous in use. Upon referral, Cal OSHA will investigate whether the ingredient poses a safety hazard to employees regularly exposed to the ingredient in the workplace. If so, Cal OSHA must propose occupational health standards to address the ingredient’s potential toxicity in the workplace.
Enforcement
Finally, the law grants special status to a private organization, the Environmental Working Group, by authorizing the DEODC to investigate the findings of the EWG’s 2004 study of 54 cosmetic products. Based on the EWG study’s findings, the DEODC may refer a case to the California Attorney General or the federal Food & Drug Administration for possible enforcement action. The law does not provide any additional funding for investigation activities.
Future Implications
Because the law has been drafted in open and indefinite terms, it is difficult to predict how the DEODC and any reviewing courts will interpret and enforce its provisions. During the next year, legislative staff, administrative personnel and industry representatives are expected to work to clarify details and draft implementing regulations.
Because of the law’s wide applicability, in a year’s time most manufacturers of cosmetic products will find themselves faced with a new reporting requirement in California. To ensure fulfillment of these obligations, it will be essential in the future to monitor the law’s developments. It is a possibility that other states will look to the new California law as a model for similar legislation.
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