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Big Win for Cosmetics: Court Closes Prop 65 Titanium Dioxide Case

Contact Author Nicole Urbanowicz
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The cosmetics industry has thwarted a large attack launched against it after a California court determined that dangerous exposure claims concerning the widely used ingredient titanium dioxide lacked merit.

On July 28, 2015, Judge George R. Hernandez of the California Superior Court for Alameda County judged in favor of the cosmetics industry in a major Proposition 65 enforcement action. The plaintiff who launched the lawsuit, Public Interest Alliance, filed a notice of violation of Prop 65 on cosmetic and skin care products citing exposure to titanium dioxide, which could have implicated numerous cosmetic and personal care products such as pressed powders, sunscreens and eye shadows that contain the ingredient. The judgment ended two years of litigation that encompassed over 100 companies.

"A database maintained by the State of California lists some 50,000 such [titanium dioxide] products, based upon manufacturer reporting," said attorney Michael Jacob Steel, who lead the team of defendants on the case. "So the case has very broad implications for the industry," he told C&T.

"Prior to our win of this case, some of the companies that we did not represent actually settled with the plaintiff agreeing not to sell titanium dioxide-containing products in California, something the law clearly did not require them to do," Steel later added. 

Proposition 65 requires the state to maintain and update a list of chemicals known to the state to cause cancer or reproductive toxicity. Titanium dioxide—which is among the most widely used ingredients in cosmetics—is not listed under Prop 65, but titanium dioxide airborne, unbound particles of respirable size is listed. According to Steel, the titanium dioxide used in cosmetics often falls within the general description for “nanomaterials,” extremely small particles that some people worry could have adverse health effects simply because they are so small.

"But testing we performed in connection with this lawsuit showed that the titanium dioxide used in cosmetics is processed with other ingredients that will adhere to the titanium dioxide, such as colorants and other ingredients, so that the particles become too large to be of concern," Steel said.

On the grounds the mere presence of titanium dioxide in cosmetic products is not sufficient to shift the burden of proof to defendants, the case, Public Interest Alliance v. Access Business Group, LLC, Alameda Superior Court Case No. RG 13697992, did not make it to trial and was decided on summary judgment.

"We had to go through the discovery process to find out that plaintiff had done no testing and its expert couldn’t say that the specific products in this case caused any exposure," Steel said. 

The plaintiff's lead attorney wasn't immediately available for comment.

 

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