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

• Published date: 21 September 2023
• 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...