MoCRA Makes Way For Primary-Jurisdiction Defense In PFAS Litigation In The Cosmetic Industry

• Published date: 21 September 2023
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Class Actions
• Law Firm: Winston & Strawn LLP
• Author: Ms Shawn R. Obi and Linda A. Greene

KEY TAKEAWAY:

In December 2022, the Modernization of Cosmetics Regulation Act (MoCRA) directed the FDA to conduct research into the effects of PFAS use in cosmetics. Cosmetic companies that are sued over PFAS use could move to dismiss or stay those cases while the FDA research is ongoing under the primary-jurisdiction doctrine.

On December 29, 2022, President Biden signed the Modernization of Cosmetics Regulation Act (MoCRA) into law.¹ One provision of MoCRA charges the FDA to conduct research into the use of perfluoroalkyl and polyfluoroalkyl substances'better known as PFAS'in the cosmetic industry, and to publish a report containing its findings by December 29, 2025.² The ongoing FDA assessment opens the door for companies sued by consumers over PFAS to assert new jurisdiction-based defenses.

PFAS, sometimes known as "forever chemicals," are liquid-resistant chemicals used in a wide range of commercial products, including nonstick baking pans, firefighting foam, and cosmetics. Due to their ubiquity in popular products, and their resistance to biodegrading, many people have raised concerns about potential deleterious effects on human health. However, research indicating the dangers of PFAS is limited, as is data about the concentration of PFAS in commercial products.

MoCRA's directive for the FDA to research PFAS is consistent with a general recent governmental push for regulation of PFAS use. For example, a number of states have worked to ban or limit PFAS use in commercial products, and the EPA has been working on various initiatives to study and limit the impact of environmental exposure to PFAS.³ Indeed, in February 2022, the FDA announced it would be monitoring scientific studies on PFAS.⁴

The ongoing MoCRA review of PFAS use in cosmetic products opens up new defenses for companies sued in PFAS-related class actions. For instance, defendants may wish to invoke the primary-jurisdiction doctrine in an effort to stay plaintiffs' claims until the FDA has completed its PFAS report.

The primary-jurisdiction doctrine is the notion that when a court and an agency have concurrent jurisdiction over an issue, the courts will often hold that the agency has primary jurisdiction over the issue, and the court will therefore refuse to hear the case until the agency has made some sort of determination regarding the issue at hand.⁵ Primary-jurisdiction doctrine is widely applied in U.S. courts to either dismiss or stay litigation, and has been cited several times by...