What cosmetics manufacturers must learn about CPSC oversight in 2025

Printed as a part of the agency’s “The Legal guidelines of Style: What’s Trending in 2025″ report, the whitepaper, “What Cosmetics Firms Must Know concerning the CPSC” explores how oversight from the US Shopper Product Security Fee (CPSC) is turning into a crucial 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 beneath the Poison Prevention Packaging Act, and the affect of influencer advertising and marketing on product classification, the paper outlined key compliance dangers that business stakeholders presently face.

On this CosmeticsDesign Q&A, we spoke with Erik Swanholt, Accomplice, Mikaela Mitcham, Affiliate Legal professional, and Kristin McGaver Sikora, Legal professional at Foley & Larder, LLP and co-authors of the whitepaper who shared their insights into the newest CPSC enforcement priorities and sensible steps cosmetics and private care producers, suppliers, and types can take to handle danger.

CDU: Your white paper notes that whereas cosmetics are primarily regulated by the FDA, sure eventualities may deliver cosmetics firms beneath CPSC jurisdiction. Are you able to elaborate on the most important compliance dangers for firms that won’t understand they fall beneath the CPSC’s purview?

Foley & Lardner, LLP: This query speaks to the core of why we wrote this piece—Many cosmetics firms assume 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 danger to shoppers.

For instance, if an edge on the packaging of a cosmetics product is slicing shoppers or the highest of an aerosol can is popping off unexpectedly with important drive, these points probably must be reported to the CPSC beneath Part 15 of the Shopper Product Security Act (CPSA) and will end in a recall.

The CPSC additionally enforces child-resistant packaging necessities beneath the Poison Prevention Packaging Act (PPPA). The PPPA goals to stop kids from accessing and ingesting hazardous or poisonous substances utilized in frequent family merchandise, together with cosmetics.

It requires these merchandise be offered in “particular packaging,” which is outlined as packaging that’s “considerably tough for youngsters beneath 5 years of age to open…” These “poisonous” or “dangerous” family substances are outlined beneath 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 have to be contained in Particular Packaging based mostly on its focus, medium of preparation, and different environmental elements. Most of the hazardous substances regulated by these legal guidelines are present in cosmetics, which means their packaging should adjust to the PPPA’s necessities. If it doesn’t, the difficulty have to be reported to the CPSC beneath Part 15 of the CPSA and is more likely to end in a recall.

Cosmetics firms additionally oftentimes make and/or promote different complementary magnificence merchandise (e.g., blow dryers, hair curlers, face rollers) that may even be thought-about “shopper merchandise” beneath the CPSA. These merchandise fall squarely inside the CPSC’s purview, which means any potential questions of safety have to be thought-about beneath the CPSA framework.

CDU: With the rising affect of social media advertising and marketing, significantly amongst younger shoppers, how may influencer partnerships inadvertently reclassify grownup cosmetics as “kids’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 “kids’s product” as a shopper product designed or meant primarily for youngsters 12 years of age or youthful. To find out whether or not a shopper product is primarily meant for a kid 12 years of age or youthful, the CPSC has promulgated a set of 4 elements, together with:

1. Whether or not the product is represented in its packaging, show, promotion, or promoting as applicable to be used by kids 12 years of age or youthful.
2. Whether or not the product is usually acknowledged by shoppers as being meant to be used by a toddler 12 years of age or youthful.
3. The Age Willpower Tips issued by the Fee employees in January 2020, and any successor to such tips.
4. An announcement by the producer concerning the meant 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 “kids’s product,” if a cosmetics firm with one in every of these merchandise enters right into a paid partnership with an influencer who has a following of largely teenagers, tweens, and youngsters (as many typically do on platforms like TikTok and Instagram), and that influencer posts content material promoting the product, these information together may tip the scales.

Whereas the CPSC has circuitously expressed an opinion on these points, the rise in influencer partnerships and social media promoting on this context may draw the CPSC’s consideration sooner or later.

CDU: The paper highlights a number of product remembers because of packaging-related security hazards. What steps ought to cosmetics firms take to proactively assess their packaging for CPSC compliance, particularly when coping with probably hazardous elements or supply techniques?

F&L: This query actually speaks to what firms ought to do to make sure security of their provide chains, not solely with respect to their baseline elements and formulations but additionally with respect to their packaging.

Cosmetics firms should guarantee their suppliers are dependable and might 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, assessment of techniques and controls, and a danger evaluation.

This additionally means drafting sturdy provider agreements that require certifications of compliance, the sharing of related take a look at outcomes and product formulation and usually set expectations for potential “worst case” eventualities and all the pieces in-between. Gone are the times when an organization merely sources product from a provider with out query.

Masking these crucial bases on the entrance finish of an engagement and recurrently monitoring and auditing efficiency as the connection progresses are key to decreasing long-term danger.

CDU: Given the CPSC’s 2025 Working Plan deal with e-commerce and worldwide producers, what ought to magnificence manufacturers—particularly these promoting by means of platforms like TikTok Store—learn about their legal responsibility in the case of abroad manufacturing and direct-to-consumer distribution?

F&L: Many firms, particularly retailers, can miss that they’ve an obligation to report back to the CPSC beneath Part 15 of the CPSA. Some firms mistakenly consider that, if they didn’t manufacture the product, they don’t have an obligation to report questions of safety despite the fact that they could import, distribute, or promote the product on to shoppers.

Except the corporate has precise data that the CPSC has been adequately knowledgeable (e.g., obtained written affirmation and a duplicate of a Part 15(b) report submission to the CPSC from the producer), a shopper product’s importer, distributor, or retailer has an obligation to “instantly” report “info which fairly helps the conclusion that such product:

1. Fails to adjust to an relevant shopper product security rule or voluntary shopper product security normal upon which the Fee has relied beneath Part 2058;
2. Fails to adjust to some other rule, regulation, normal, or ban beneath the CPSA or some other Act enforced by the CPSC;
3. Incorporates a defect which may create a considerable product hazard; or
4. Creates an unreasonable danger of significant damage or loss of life.

Which means a home importer or retailer of merchandise bought from a international producer may be held chargeable for any product questions of safety or defects. As such, correct vetting, onboarding, and common monitoring and auditing of international companions is essential.

Whereas these actions could not stop all points, they’ll definitely cut back danger and potential legal responsibility if a product challenge arises.

CDU: Do you anticipate future regulatory overlap or coordination between the FDA and CPSC in the case of cosmetics marketed to tweens and youngsters, significantly in gentle of present traits? If that’s the case, how ought to firms 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 could regulate it as a medical machine.

We count on the businesses to behave equally with respect to any potential points with cosmetics marketed to tweens and youngsters.

Firms 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.

Firms which have laid this foundational groundwork are significantly better positioned to handle shopper complaints and resolve points earlier than they spiral uncontrolled.