Many beauty industry experts would agree that the Modernization of Cosmetics Regulation Act (MoCRA) passed in late 2022 was long overdue but far from perfect. As the first major update to the Food and Drug Administration’s (FDA) cosmetics authorities since 1938, MoCRA imposed several new requirements for cosmetic manufacturers and brands. However, some clean beauty brands and industry advocates argue that there were several provisions that didn’t go far enough, particularly in regard to ingredients and ingredient safety.
In an attempt to fill in some of the gaps in the newly updated federal legislation, some states have continued to enact cosmetics legislation that outright bans the use of potentially harmful chemicals in cosmetics. This new wave of state laws limiting the use of certain ingredients in cosmetic products (or banning them altogether) started before MoCRA passed and is in part responsible for the updated federal legislation. The increasing number of state regulations provided some much-needed momentum for the federal government to update its laws to address a growing amount of consumer concerns.
But if every state continues to expand its own rules and regulations, how will beauty brands be able to navigate a regulatory landscape with potentially 50 different standards? And what impact will this state-by-state legislation have on small, independent beauty businesses that might not have the resources or bandwidth to ensure compliance?
In an effort to understand the nuances of these various state legislation efforts, BeautyMatter spoke with industry experts to find out the impact these laws might have on the beauty industry.
Where MoCRA Falls Short
Passed with bipartisan and industry support, MoCRA was a great start in reforming how cosmetics are regulated, but the legislation is missing a few key elements. MoCRA did not ban any specific ingredients, and the federal preemption provision allows states to continue to enforce existing bans or limits on ingredients in cosmetic products, enact new bans and limits on ingredients, and continue to enforce any law that requires reporting of cosmetic ingredients.
“Part of the whole point of the industry working together to make sure that MoCRA got passed was to help prevent this type of action at the state level by providing a fair and comprehensive set of regulations to oversee [cosmetics] at the federal level,” Independent Beauty Association (IBA) President and CEO Don Frey told BeautyMatter.
“Each one of these [state regulations] seems to have just a slightly different list of ingredients in them, so it becomes extremely difficult for the industry as a whole—particularly small businesses—to be able to keep track of all these regulations, make sure they’re complying, and also not constantly be having to go back and reformulate and recast all their targets because yet another ingredient that is safe is all of a sudden now on a list in some random state.”
Generally speaking, it is easier and quicker to pass state legislation than it is to pass federal legislation. This is because the nature of federal legislation is such that it affects everyone in the entire nation, whereas states have a smaller constituent base to answer to. MoCRA’s definition of safety is rather vague on purpose and allows for individual states to set their own standards.
“The fact that there are these patchwork bills coming out means the federal regulation is missing something important, which I believe it is,” says Karen Yarussi-King, President at Global Regulatory Associates, a regulatory consultancy for small and medium-sized cosmetic companies. “It’s missing a position on ingredients, and a position on natural, clean, nontoxic, safe, etc. It’s still the Wild West.”
For now, it’s up to the states to pick up where the federal government left off. Organizations like the Environmental Working Group (EWG) are not waiting for the federal government to act on cosmetics reform. They’re going straight to the states to advocate for bills that they believe contribute to safer cosmetics.
“The Food and Drug Administration rarely takes steps to ban or restrict ingredients on a federal level, even though there are ingredients allowed in cosmetics that could cause health harms,” Melanie Benesh, EWG’s VP of Government Affairs, tells BeautyMatter. “States play an important gap-filling role where the federal government has fallen short.”
State legislation is often the quickest path to effect change, and clean beauty brand Beautycounter has been a longstanding advocate for cosmetics reform at both the state and national levels. Chief Impact Officer Jen Lee recently provided testimony to the Washington State Senate Environment, Energy and Technology Committee in support of the Toxic-Free Cosmetics Act in March 2023. Her testimony helped influence the Washington State Toxic-Free Cosmetics Act (HB 1047), which was recently signed into law and restricts the manufacture, sale, and distribution of cosmetics containing harmful chemicals, including PFAS, formaldehyde, mercury, and more. Beautycounter’s community of advocates sent over 1,000 emails to their state legislators urging them to support and pass this bill. This passage marks the 12th piece of legislation that Beautycounter has influenced. Washington’s Toxic-Free Cosmetics Act bans more chemicals of concern in beauty and personal care products than any other state.
“There’s a specific reason why MoCRA didn’t address toxic chemical bans, [and that’s] because they wanted to leave the door open so states could weigh in and be able to legislate for themselves,” Lee tells BeautyMatter. “A lot of federal-level activities happen because there’s a significant movement in state-level laws. I think you have to look at both, and I don’t think it particularly makes sense in a non-bipartisan topic like this that one needs to trump the other.”
The states show no signs of slowing down when it comes to creating their own laws to protect consumers in the wake of MoCRA. Currently, Beautycounter’s advocacy efforts are geared towards the Nevada PFAS ban, the California chemical ban, the New York chemical ban, the Oregon chemical ban, and the Illinois chemical ban.
“We actually really believe every state matters,” says Lee. “Our strategy is to weigh in on every state as long as we have the resources and the capability and time to do it.”