As reported by multiple news outlets including New York Post, CNN, and the BBC in recent months, concerns have been growing regarding the inappropriate use of anti-aging skin care products by teen and pre-teen consumers. In response to the “skin care craze,” California Democratic Assemblymember Alex Lee introduced a bill in February of this year aimed at prohibiting the sale of “over-the-counter skin care product or cosmetic product advertised to address skin aging that contains either of the following intentionally added ingredients: Vitamin A and its derivatives, including, but not limited to, retinoids and retinol, and/or an alpha hydroxy acid, including, but not limited to, glycolic acid, ascorbic acid (vitamin C), or citric acid.”
California Assembly Bill 2491 initially passed the Environmental Safety and Toxic Materials Committee in April but failed to advance in the State Assembly last month. While the bill was being processed through the state’s legislature, it garnered significant response from the nationwide cosmetics and personal care product industries, including the Personal Care Products Council (PCPC), who issued a statement that the bill “falls short of addressing the real issue and instead creates restrictions so complicated that compliance or enforcement would be largely impossible,” and that it “threatens to overregulate products that are safe and essential for healthy skin care.”
Considering the bill’s failure to advance, the question remains if other states will follow suit in drafting their own (modified) versions of AB 2941. To gain understanding on the outlook of future potential regulatory actions in this space, CosmeticsDesign spoke with the PCPC as well as industry attorneys Kelly Bonner, Associate Attorney at Duane Morris LLP and Ann Begley, Partner at Wiley Rein LLP and Chair of the firm’s Food and Drug Practice for their insights. We asked each respondent for their views on this issue, and they provided the following responses.
Personal Care Products Council
"We share Assemblymember Lee’s concerns about the social media trend of preteens and teens using anti-aging products, but no matter how well intentioned, California AB 2491 presented significant compliance issues, requiring cashiers to verify product claims and customer ages at checkout," said the PCPC.
"The bill threatened to restrict essential products like sunscreens, moisturizers and cleansers, which are safe for mature skin. PCPC and our member companies want to ensure parents, caregivers, teens and preteens have access to reliable information and empower them to make educated choices about skin care products with a growing resource on preteen skin care."
Ann Begley, Partner at Wiley Rein LLP
"If the bill had become law, it would have required entities conducting business in California to take a “reasonable” step to ensure that purchasers of the tween-restricted products were not under 13 years of age," said Begley. "Placing a prominent notice next to the physical product or in the product's online description or taking steps to verify the purchaser’s age were identified as “reasonable steps.” Failure to take such steps would have provided for civil penalties of up to $10,000 per day for each violation.
"While the cosmetic industry agreed that the social media-driven trend to promote tween use of products intended for an older audience was concerning, it opposed California Assembly Bill 2491, asserting that the restrictions were complicated and overbroad, and that both compliance and enforcement would be impossible. With countless skin care products that contain these ingredients, many of which are not labeled or intended for “anti-aging”, sellers of cosmetic products covered under the bill would have difficulty complying with the bill’s requirements.
"For example, if an ID requirement was adopted as proposed, retailers would have had to “card” a large swath of its customers to avoid the threat of a potential $10,000 penalty for each violation. To reduce risk of violation, retailers may have chosen not to stock products containing the restricted ingredients unless they were clearly labeled so that retail staff could easily identify products subject to the tween restriction.
"Or retailers may have chosen to limit stocking restricted products even where they are clearly labeled to further manage the compliance risk. In response, manufacturers may have been required to engage in expensive label changes, or even more expensive reformulations to replace the tween-restricted ingredients.
"Moreover, the California Assembly Appropriations Committee determined that the bill would cause workload cost pressures (General Fund) to the Department of Justice (DOJ) of an unknown but potentially significant amount. With the General Fund facing a structural deficit in the tens of billions of dollars over the next several fiscal years, the Committee clearly had concerns with moving this bill forward.
"While California Assembly Bill 2491 failed to proceed, it is possible that a new iteration will be presented during the Assembly’s next term, or that legislators in other states will take a crack at introducing similar legislative proposals if the social media trend persists. As a practical matter, education of parents and children is likely the best approach, and the cosmetic industry could certainly support such efforts by using their own social media presence to counteract the current trend.
"However, if legislative answers are pursued, a more targeted approach should seek to prohibit the promotional activity rather than product sales. In this case, retailers, manufacturers, and paid influencers could be prohibited from advertising or otherwise promoting skin care products with these ingredients towards persons under 13 unless they have scientific evidence that the concentrations used in their products are safe for use in this population.
"Among other things, evidence of prohibited promotional activity could include monetary payments or other material rewards directed to influencers who promote these products to tweens. This more targeted approach could make implementation and enforcement more feasible, and present less of a burden on implementing authorities and regulated entities."
Kelly Bonner, Associate Attorney at Duane Morris LLP
"I expected the bill to fail," said Bonner, "however, given an increased focus on personal care products and possible health effects, as well as continued media attention on this issue, I wouldn’t be surprised to see a similarly intentioned bill being raised in other states that have been active in regulating cosmetic ingredients such as Washington or Oregon.
"And again, it’s important to remember that the issue here isn’t with the safety of the ingredients at issue—the issue is that they’re not being used as intended, and that is a conversation for caregivers and medical professionals, not beauty retail cashiers."
