Key Takeaways:
- Legislators in several states have banned, or are considering banning, an expanding list of ingredients from food, medical products, cosmetics, and other consumer products based on safety concerns.
- This evolving patchwork of legislation presents challenges to entities across the supply chain as the potential for enforcement extends beyond the manufacturer.
- Companies making products with these banned ingredients may soon face increasing pressure from retailers and distributors with national distribution networks to reformulate their products to switch to safer alternative ingredients.
From California and the state of Washington to New York, and several places in-between, there is a growing concern among legislators about various ingredients that are commonly added to food, medical products, cosmetics, and other consumer products. Legislative proposals banning specific ingredients are being introduced into state legislatures, and in some instances have already been passed and are ready to take effect. These ingredient bans are largely in response to scientific data linking the use or consumption of products containing the banned (or soon-to-be banned) ingredients to adverse health consequences, including some that are serious. For example, an ingredient that recently has received a lot of national attention is chlormequat chloride (chlormequat). Chlormequat is a plant growth regulator and is widely used on grain crops such as oat. Animal toxicological studies, however, suggest that exposure to chlormequat can reduce fertility, harm a developing fetus, and delay puberty, among other health problems. Given these concerns, it would not be surprising if this ingredient is soon added to current food ingredient bans or proposed bans.
The expanding patchwork of state legislative activity makes it imperative that manufacturers, distributors, and retailers of food (including pet food), cosmetics and other personal care products, pet products, and medical products take a close look at the formulations of the products they manufacture, distribute, or market to make sure they do not include ingredients that are banned in a certain state. The civil penalties associated with violating these bans can have a crippling effect on a company's bottom line—with penalties ranging from $5,000 to $10,000 per violation. These laws impose penalties on multiple activities within the chain of commerce and extend to distributors and retailers, so the sourcing of suppliers and their products is even more important now than ever. As national retailers and distributors update their procurement policies to comply with varying state laws, companies making products with these banned ingredients will eventually reformulate their products to switch to safer alternative ingredients —even for products that will be sold in states that have not enacted such laws.
As can be expected, the laws vary from state to state. California's law, for example, includes an enumerated list of ingredients (50, to be exact) that are banned from cosmetics. California's cosmetic ingredient ban has rolling compliance dates—the first of which is January 1, 2025— for different sets of banned ingredients. California also recently passed a bill banning four ingredients from any food products manufactured, sold, delivered, distributed, held, or offered for sale in the state after January 1, 2027. Other states, such as Washington, restrict certain classes of chemicals, including perfluoroalkyl and polyfluoroalkyl substances (PFAS) and triclosan from cosmetics and food contact papers. Unless and until the U.S. Food and Drug Administration (FDA) establishes and updates safety levels for ingredients in products regulated by the agency, manufacturers with a nationwide presence may continue to face an everchanging regulatory landscape as more state legislators decide to take matters into their own hands.
Effective tracking, compliance strategies, stakeholder engagement, robust supply agreements and internal standard operating procedures and workstreams will be key to avoid violating the bans. Retailers (especially those with a strong e-commerce presence, including those that allow or involve the use of third-party sellers) must be particularly mindful about the possibility of counterfeit products. Counterfeits pose a big threat to effective compliance because of the difficulty in discovering unlawful ingredients absent testing.
Originally published 26 February 2024
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