Revealed as a part of the agency’s “The Legal guidelines of Trend: What’s Trending in 2025″ report, the whitepaper, “What Cosmetics Corporations Have to Know in regards to the CPSC” explores how oversight from the US Shopper Product Security Fee (CPSC) is changing into a important space of concern for cosmetics and private care product producers and suppliers.
From packaging defects that pose potential security dangers to child-resistant packaging guidelines underneath the Poison Prevention Packaging Act, and the influence of influencer advertising on product classification, the paper outlined key compliance dangers that trade stakeholders presently face.
On this CosmeticsDesign Q&A, we spoke with Erik Swanholt, Companion, Mikaela Mitcham, Affiliate Lawyer, and Kristin McGaver Sikora, Lawyer at Foley & Larder, LLP and co-authors of the whitepaper who shared their insights into the most recent CPSC enforcement priorities and sensible steps cosmetics and private care producers, suppliers, and types can take to handle threat.
CDU: Your white paper notes that whereas cosmetics are primarily regulated by the FDA, sure eventualities might deliver cosmetics corporations underneath CPSC jurisdiction. Are you able to elaborate on the most important compliance dangers for corporations that will not understand they fall underneath the CPSC’s purview?
Foley & Lardner, LLP: This query speaks to the core of why we wrote this piece—Many cosmetics corporations suppose the FDA is the one company they should fear about, however the CPSC also needs to be a part of the general compliance calculus.
The CPSC regulates product packaging, together with cosmetics packaging. As detailed within the white paper, the CPSC has recalled beauty merchandise for defects in packaging that create hazards or pose severe damage threat to shoppers.
For instance, if an edge on the packaging of a cosmetics product is reducing shoppers or the highest of an aerosol can is popping off unexpectedly with important power, these points possible should be reported to the CPSC underneath Part 15 of the Shopper Product Security Act (CPSA) and will lead to a recall.
The CPSC additionally enforces child-resistant packaging necessities underneath the Poison Prevention Packaging Act (PPPA). The PPPA goals to stop youngsters from accessing and ingesting hazardous or poisonous substances utilized in widespread family merchandise, together with cosmetics.
It requires these merchandise be offered in “particular packaging,” which is outlined as packaging that’s “considerably troublesome for kids underneath 5 years of age to open…” These “poisonous” or “dangerous” family substances are outlined underneath Part 2(f) of the Federal Hazardous Substance Act (FHSA) and Part 201 of the Meals, Drug, & Beauty Act.
The PPPA likewise offers for particular substances that should be contained in Particular Packaging based mostly on its focus, medium of preparation, and different environmental components. Lots of the hazardous substances regulated by these legal guidelines are present in cosmetics, that means their packaging should adjust to the PPPA’s necessities. If it doesn’t, the problem should be reported to the CPSC underneath Part 15 of the CPSA and is more likely to lead to a recall.
Cosmetics corporations additionally oftentimes make and/or promote different complementary magnificence merchandise (e.g., blow dryers, hair curlers, face rollers) that will even be thought of “client merchandise” underneath the CPSA. These merchandise fall squarely inside the CPSC’s purview, that means any potential issues of safety should be thought of underneath the CPSA framework.
CDU: With the rising affect of social media advertising, significantly amongst younger shoppers, how may influencer partnerships inadvertently reclassify grownup cosmetics as “youngsters’s merchandise” within the eyes of the CPSC?
F&L: One of many CPSC’s said priorities is the regulation of kids’s merchandise. Part 108(e) of the Shopper Product Security Enchancment Act defines a “youngsters’s product” as a client product designed or supposed primarily for kids 12 years of age or youthful. To find out whether or not a client product is primarily supposed for a kid 12 years of age or youthful, the CPSC has promulgated a set of 4 components, together with:
- Whether or not the product is represented in its packaging, show, promotion, or promoting as applicable to be used by youngsters 12 years of age or youthful.
- Whether or not the product is often acknowledged by shoppers as being supposed to be used by a baby 12 years of age or youthful.
- The Age Dedication Tips issued by the Fee workers in January 2020, and any successor to such pointers.
- An announcement by the producer in regards to the supposed use of the product, together with a label on the product, if such assertion is cheap.
The important thing right here is the second issue associated to the promotion and promoting of the product. Many cosmetics merchandise have younger, enjoyable, and brightly coloured packaging, and a few have cartoonish logos of animals or different caricatures.
Whereas these traits alone are unlikely to render a product a “youngsters’s product,” if a cosmetics firm with considered one of these merchandise enters right into a paid partnership with an influencer who has a following of largely teenagers, tweens, and kids (as many typically do on platforms like TikTok and Instagram), and that influencer posts content material promoting the product, these information together might tip the scales.
Whereas the CPSC has in a roundabout way expressed an opinion on these points, the rise in influencer partnerships and social media promoting on this context might draw the CPSC’s consideration sooner or later.
CDU: The paper highlights a number of product remembers resulting from packaging-related security hazards. What steps ought to cosmetics corporations take to proactively assess their packaging for CPSC compliance, particularly when coping with doubtlessly hazardous components or supply methods?
F&L: This query actually speaks to what corporations ought to do to make sure security of their provide chains, not solely with respect to their baseline components and formulations but additionally with respect to their packaging.
Cosmetics corporations should guarantee their suppliers are dependable and may constantly present the identical supplies or an applicable substitute if an issue arises. Good provide chain hygiene requires performing due diligence and adequate vetting of potential suppliers earlier than engagement, together with reference checks, background analysis, overview of methods and controls, and a threat evaluation.
This additionally means drafting sturdy provider agreements that require certifications of compliance, the sharing of related check outcomes and product formulation and customarily set expectations for potential “worst case” eventualities and the whole lot in-between. Gone are the times when an organization merely sources product from a provider with out query.
Protecting these vital bases on the entrance finish of an engagement and frequently monitoring and auditing efficiency as the connection progresses are key to decreasing long-term threat.
CDU: Given the CPSC’s 2025 Working Plan deal with e-commerce and worldwide producers, what ought to magnificence manufacturers—particularly these promoting by platforms like TikTok Store—learn about their legal responsibility in the case of abroad manufacturing and direct-to-consumer distribution?
F&L: Many corporations, particularly retailers, can miss that they’ve an obligation to report back to the CPSC underneath Part 15 of the CPSA. Some corporations mistakenly consider that, if they didn’t manufacture the product, they don’t have an obligation to report issues of safety despite the fact that they could import, distribute, or promote the product on to shoppers.
Until the corporate has precise information that the CPSC has been adequately knowledgeable (e.g., acquired written affirmation and a duplicate of a Part 15(b) report submission to the CPSC from the producer), a client product’s importer, distributor, or retailer has an obligation to “instantly” report “info which moderately helps the conclusion that such product:
- Fails to adjust to an relevant client product security rule or voluntary client product security normal upon which the Fee has relied underneath Part 2058;
- Fails to adjust to another rule, regulation, normal, or ban underneath the CPSA or another Act enforced by the CPSC;
- Comprises a defect which might create a considerable product hazard; or
- Creates an unreasonable threat of significant damage or demise.
Which means a home importer or retailer of merchandise bought from a overseas producer could be held accountable for any product issues of safety or defects. As such, correct vetting, onboarding, and common monitoring and auditing of overseas companions is essential.
Whereas these actions might not stop all points, they are going to actually cut back threat and potential legal responsibility if a product subject arises.
CDU: Do you anticipate future regulatory overlap or coordination between the FDA and CPSC in the case of cosmetics marketed to tweens and kids, significantly in gentle of present traits? If that’s the case, how ought to corporations put together now?
F&L: Traditionally, the FDA and CPSC have coordinated with each other on areas of potential overlapping jurisdiction. For instance, the CPSC typically regulates child teethers, but when the teether is particularly designed or marketed to alleviate teething ache, the FDA might regulate it as a medical system.
We count on the companies to behave equally with respect to any potential points with cosmetics marketed to tweens and kids.
Corporations can put together by educating themselves about their potential publicity and making certain that they’ve applicable compliance capabilities in place, each to proactively stop issues from occurring but additionally to element the processes and procedures for an environment friendly and applicable response once they do.
Corporations which have laid this foundational groundwork are significantly better positioned to handle client complaints and resolve points earlier than they spiral uncontrolled.