Published as part of the firm’s “The Laws of Fashion: What’s Trending in 2025″ report, the whitepaper, “What Cosmetics Companies Need to Know about the CPSC” explores how oversight from the US Consumer Product Safety Commission (CPSC) is becoming a critical area of concern for cosmetics and personal care product manufacturers and suppliers.
From packaging defects that pose potential safety risks to child-resistant packaging rules under the Poison Prevention Packaging Act, and the impact of influencer marketing on product classification, the paper outlined key compliance risks that industry stakeholders currently face.
In this CosmeticsDesign Q&A, we spoke with Erik Swanholt, Partner, Mikaela Mitcham, Associate Attorney, and Kristin McGaver Sikora, Attorney at Foley & Larder, LLP and co-authors of the whitepaper who shared their insights into the latest CPSC enforcement priorities and practical steps cosmetics and personal care manufacturers, suppliers, and brands can take to manage risk.
CDU: Your white paper notes that while cosmetics are primarily regulated by the FDA, certain scenarios could bring cosmetics companies under CPSC jurisdiction. Can you elaborate on the biggest compliance risks for companies that may not realize they fall under the CPSC’s purview?
Foley & Lardner, LLP: This question speaks to the core of why we wrote this piece—Many cosmetics companies think the FDA is the only agency they need to worry about, but the CPSC should also be part of the overall compliance calculus.
The CPSC regulates product packaging, including cosmetics packaging. As detailed in the white paper, the CPSC has recalled cosmetic products for defects in packaging that create hazards or pose serious injury risk to consumers.
For example, if an edge on the packaging of a cosmetics product is cutting consumers or the top of an aerosol can is popping off unexpectedly with significant force, these issues likely need to be reported to the CPSC under Section 15 of the Consumer Product Safety Act (CPSA) and may result in a recall.
The CPSC also enforces child-resistant packaging requirements under the Poison Prevention Packaging Act (PPPA). The PPPA aims to prevent children from accessing and ingesting hazardous or toxic substances used in common household products, including cosmetics.
It requires these products be sold in “special packaging,” which is defined as packaging that is “significantly difficult for children under 5 years of age to open…” These “toxic” or “harmful” household substances are defined under Section 2(f) of the Federal Hazardous Substance Act (FHSA) and Section 201 of the Food, Drug, & Cosmetic Act.
The PPPA likewise provides for specific substances that must be contained in Special Packaging based on its concentration, medium of preparation, and other environmental factors. Many of the hazardous substances regulated by these laws are found in cosmetics, meaning their packaging must comply with the PPPA’s requirements. If it does not, the issue must be reported to the CPSC under Section 15 of the CPSA and is likely to result in a recall.
Cosmetics companies also oftentimes make and/or sell other complementary beauty products (e.g., blow dryers, hair curlers, face rollers) that would also be considered “consumer products” under the CPSA. These products fall squarely within the CPSC’s purview, meaning any potential safety issues must be considered under the CPSA framework.
CDU: With the growing influence of social media marketing, particularly among young consumers, how might influencer partnerships inadvertently reclassify adult cosmetics as “children’s products” in the eyes of the CPSC?
F&L: One of the CPSC’s stated priorities is the regulation of children’s products. Section 108(e) of the Consumer Product Safety Improvement Act defines a “children’s product” as a consumer product designed or intended primarily for children 12 years of age or younger. To determine whether a consumer product is primarily intended for a child 12 years of age or younger, the CPSC has promulgated a set of four factors, including:
- Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.
- Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.
- The Age Determination Guidelines issued by the Commission staff in January 2020, and any successor to such guidelines.
- A statement by the manufacturer about the intended use of the product, including a label on the product, if such statement is reasonable.
The key here is the second factor related to the promotion and advertising of the product. Many cosmetics products have young, fun, and brightly colored packaging, and some have cartoonish logos of animals or other caricatures.
While these characteristics alone are unlikely to render a product a “children’s product,” if a cosmetics company with one of these products enters into a paid partnership with an influencer who has a following of largely teens, tweens, and children (as many often do on platforms like TikTok and Instagram), and that influencer posts content advertising the product, these facts in combination could tip the scales.
While the CPSC has not directly expressed an opinion on these issues, the rise in influencer partnerships and social media advertising in this context could draw the CPSC’s attention in the future.
CDU: The paper highlights several product recalls due to packaging-related safety hazards. What steps should cosmetics companies take to proactively assess their packaging for CPSC compliance, especially when dealing with potentially hazardous ingredients or delivery systems?
F&L: This question really speaks to what companies should do to ensure safety in their supply chains, not only with respect to their baseline ingredients and formulations but also with respect to their packaging.
Cosmetics companies must ensure their suppliers are reliable and can consistently provide the same materials or an appropriate substitute if a problem arises. Good supply chain hygiene requires performing due diligence and sufficient vetting of potential suppliers before engagement, including reference checks, background research, review of systems and controls, and a risk analysis.
This also means drafting robust supplier agreements that require certifications of compliance, the sharing of relevant test results and product formulas and generally set expectations for potential “worst case” scenarios and everything in-between. Gone are the days when a company simply sources product from a supplier without question.
Covering these necessary bases on the front end of an engagement and regularly monitoring and auditing performance as the relationship progresses are key to reducing long-term risk.
CDU: Given the CPSC’s 2025 Operating Plan focus on e-commerce and international manufacturers, what should beauty brands—especially those selling through platforms like TikTok Shop—know about their liability when it comes to overseas production and direct-to-consumer distribution?
F&L: Many companies, especially retailers, can miss that they have a duty to report to the CPSC under Section 15 of the CPSA. Some companies mistakenly believe that, if they did not manufacture the product, they do not have an obligation to report safety issues even though they may import, distribute, or sell the product directly to consumers.
Unless the company has actual knowledge that the CPSC has been adequately informed (e.g., received written confirmation and a copy of a Section 15(b) report submission to the CPSC from the manufacturer), a consumer product’s importer, distributor, or retailer has a duty to “immediately” report “information which reasonably supports the conclusion that such product:
- Fails to comply with an applicable consumer product safety rule or voluntary consumer product safety standard upon which the Commission has relied under Section 2058;
- Fails to comply with any other rule, regulation, standard, or ban under the CPSA or any other Act enforced by the CPSC;
- Contains a defect which could create a substantial product hazard; or
- Creates an unreasonable risk of serious injury or death.
This means that a domestic importer or retailer of products purchased from a foreign manufacturer can be held responsible for any product safety issues or defects. As such, proper vetting, onboarding, and regular monitoring and auditing of foreign partners is crucial.
While these actions may not prevent all issues, they will certainly reduce risk and potential liability if a product issue arises.
CDU: Do you anticipate future regulatory overlap or coordination between the FDA and CPSC when it comes to cosmetics marketed to tweens and children, particularly in light of current trends? If so, how should companies prepare now?
F&L: Historically, the FDA and CPSC have coordinated with one another on areas of potential overlapping jurisdiction. For example, the CPSC generally regulates baby teethers, but if the teether is specifically designed or marketed to relieve teething pain, the FDA may regulate it as a medical device.
We expect the agencies to act similarly with respect to any potential issues with cosmetics marketed to tweens and children.
Companies can prepare by educating themselves about their potential exposure and ensuring that they have appropriate compliance functions in place, both to proactively prevent problems from occurring but also to detail the processes and procedures for an efficient and appropriate reaction when they do.
Companies that have laid this foundational groundwork are much better positioned to address consumer complaints and resolve issues before they spiral out of control.