PFAS cosmetic studies are a “springboard” for litigation

Cosmetic companies could face litigation if their products contain PFAS, lawyers warn, as a spate of recent lawsuits hit companies that advertise themselves as clean but whose products contain evidence of “chemicals for good.”

The lawsuits are a harbinger of future liability for the cosmetics industry, with efforts underway in the United States to limit the sale of cosmetics made with the compounds and even designate some PFAS as dangerous.

“You’ve heard, probably in the legal field, for several months now that these [studies finding PFAS in cosmetics] it will likely trigger a lot of litigation. And here we are, it finally started to happen, “said Ally Cunningham, environmental attorney at Lathrop GPM, a law firm that hosted an industry webinar on Wednesday. The firm claims to have represented companies in some of the most publicized” PFAS cases. ” “of the country.

Recent PFAS lawsuits highlight vulnerabilities for the cosmetics industry

PFAS, or “per- and polyfluoroalkyl substances”, are a broad class of man-made compounds added to cosmetics to make them smoother, more spreadable and longer lasting. They can also be present in trace amounts due to their use in manufacturing processes as coatings and lubricants and because they are widespread in water supplies. Some PFAS have been linked to health effects ranging from liver damage to increased rates of cardiovascular problems and some types of cancer.

Last year, a team of researchers from the University of Notre Dame and other institutions tested levels of fluoride, a potential indicator of PFAS, in more than 200 cosmetics, and found that about half contained fluoride. When they tested 29 makeup products with higher fluoride levels for individual PFASs, they found the compounds in each product.

Last December, testing by consumer wellness blog Mamavation found that 54 out of 83 eco-friendly beauty brand products contained organic fluoride.

These studies were the “springboard” for a wave of lawsuits, Cunningham said. A class action lawsuit filed in December against bareMinerals alleged that the cosmetics company, which has five organic products containing fluoride, “unfairly gained consumer confidence” by advertising that its products were “free of harsh chemicals.” among other claims.

In the same month, Toxin Free USA, a nonprofit organization focused on food and the environment, sued CoverGirl for misleading advertising after tests showed that its TruBlend pressed powder foundation contained organic fluoride levels of more than 6,000 parts per million (ppm), for reference, experts say 100 ppm or more likely indicates intentional use of PFAS. The nonprofit said the test results run counter to the company’s sustainability claims on its website and reports, such as proclaiming itself as the “original founder and creator of clean beauty.”

Meanwhile, green beauty company Burt’s Bees faces a class action lawsuit filed in February based on the Mamavation test, which found that two of its mascaras had organic fluoride levels indicative of PFAS added intentionally.

Cunningham warned that cosmetics companies should be particularly concerned about two PFAS in lawsuits filed this month against French personal care giant L’Oréal as the lawsuits were based only on the company’s general product safety claims. “Up until this point, it seemed like you were only ripe for a potential lawsuit if you were really focused on that green publicity,” Cunningham said. “And the L’Oréal case shows us that this is no longer the case.”

While the lawsuits seem unlikely to be successful, given a 2018 Danish study that found PFAS levels in makeup are too low to pose a risk to the wearer, the potential litigation still represents a “real vulnerability” for the wearer. cosmetics industry, Cunningham said.

It drew parallels to a wave of lawsuits facing grocers like Kroger and Albertsons after it was discovered that some of their compostable tableware likely contained PFAS. Kroger agreed in an agreement reached last year to stop saying the product line in question was compostable.

Businesses face a “rapidly changing landscape”

In addition to potential lawsuits, the cosmetics industry has other reasons for concern as the U.S. Environmental Protection Agency moves to regulate compounds, webinar presenters said. The agency’s request to list PFOA and PFOS, two particularly toxic PFAS, as hazardous substances could create “significant” cleanup responsibilities for companies that have released PFAS into the environment, particularly as other PFAS can break down into these two compounds said Matt Walker, an attorney for Lathrop GPM.

Additionally, a number of states are trying to follow in the footsteps of Maine and Maryland, which have banned the addition of PFAS to cosmetics. At least 32 states are considering laws that would ban or restrict PFAS, including their use in personal care products, according to an analysis published last month by the Safer States network.

“So it’s a rapidly changing landscape (which) makes it very difficult to comply,” Walker said.

Editor’s Note: An earlier version of this story inconsistently named one of Lathrop GPM customers.

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Banner photo: Peter Kalonji / Unsplash

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