If you do not know what Prop 65 is, then your cosmetic company is one of the few that has not faced Prop 65 challenges. Whether or not your company has faced enforcement, all cosmetic companies selling products into California should be aware of Prop 65 and its developments. In sum, Proposition 65 requires businesses to notify Californians about significant amounts of chemicals in the products they purchase, in their homes or workplaces, or that are released into the environment. Occasionally, new chemicals are proposed to be added to the list of chemicals “known to the state of California to cause cancer.” The list contains a wide range of naturally occurring and synthetic chemicals that are known to cause cancer or birth defects or other reproductive harm. These chemicals include additives or ingredients in pesticides, common household products, food, drugs, cosmetics, dyes, or solvents. On April 23, 2015, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) announced an intent to list Aloe vera, whole leaf extract, and Goldenseal root powder as such cancer causing chemicals.
The proposed listing follows the listing of the ingredients by the International Agency for Research on Cancer (IARC) as agents that are “possibly carcinogenic to humans”, and that there is “sufficient evidence of carcinogenicity in experimental animals.”
As the notice of intent to list explains, the notice of intent only applies to the Aloe vera whole leaf extract, which is not the same as Aloe vera decolorized whole leaf extract, Aloe vera gel, Aloe vera gel extract, or Aloe vera latex, which are not be covered by the proposed listing.
Why does this matter? The concern is bounty hunters which appear to jump at the moment a listing becomes effective. For example, when Cocamide DEA was first listed, the very day after the effective date of the listing we saw the first notice of violation was sent out and to date at least 90 notices of violation have been sent with multiple companies listed in each notice. As a result, hundreds of cosmetic companies have had to answer to such challenges.
Also, even if a product does not contain the Aloe vera whole leaf extract, that may not be clear by looking at the ingredient list. As such, products containing any form of Aloe vera may want to amend their ingredient statement to clarify the type of Aloe vera that is in the product. After all, even merely responding to a notice of violation can be costly.
What can you do now? OEHHA is seeking comments as to whether the chemicals meet the requirements for listing as causing cancer specified in Health and Safety Code section 25249.8(a) and Labor Code section 6382(b)(1). Unfortunately, because these are ministerial listings, OEHHA cannot consider scientific arguments concerning the weight or quality of the evidence considered by IARC when it identified these chemicals and will not respond to such comments if they are submitted. The deadline to submit comments is 5:00 p.m. (Pacific) on Tuesday, June 9, 2015. Comments transmitted by e-mail should be addressed to P65Public.Comments@oehha.ca.gov, and should include “NOIL” and the chemical name in the subject line.