Aging is not glamorous. It is, however, inevitable―a fact of which I am increasingly reminded every time I look in the mirror.
In addition to being a full-time lawyer and mom of two small chaos agents, I am a woman who just turned 40. My social media is a 24/7 loop of time-turning miracle products, before-and-after images, and Pulitzer Prize-worthy headlines like “Is This 42 Year Old Too Hot to Play a 40 Year Old?” I am constantly reminded that there was a better version of me. One who was, invariably, 20 years younger.
Turns out, there are a lot of younger versions of me, and they’re all at Sephora, spending $80 on anti-aging products in an attempt to avoid my tragic fate (and forehead). As consumers 30 years younger than me (i.e., children) have reported spending more on cosmetics, skin care and fragrance than in previous years, dermatologists have increasingly reported younger teenagers with skin conditions as a result of anti-aging product use.
These conditions include dermatitis, dehydrated or peeling skin, and rashes, as well as heightened sensitivity to sun damage. Dermatologists are also reporting teenagers seeking impossibly perfect skin, or ideas about skin care based on social media misinformation.
In response to these concerns, earlier this year, California Democratic Assemblymember Alex Lee proposed AB 2491, which, as drafted, would have required retailers to take “a reasonable step” to prohibit the sale of over-the-counter skin care products and cosmetics that advertise that they are intended to address skin aging if those products intentionally contain either (1) vitamin A and its derivatives, including, but not limited to, retinoid and retinol; or (2) an alpha hydroxy acid (AHA), including, but not limited to, glycolic acid, ascorbic acid (vitamin C), or citric acid, to customers under the age of 13. If passed, the proposed bill would have imposed civil penalties up to $10,000 per day for each violation.
The ingredients identified in the proposed ban—Vitamin A and its derivatives and AHA—have been determined to be safe when used as directed at the appropriate age. They are common skin care ingredients, found in a wide range of products in stores today, including sunscreens, moisturizers, toners, brightening serums, and cleaners.
However, in a press release regarding the proposed bill, Assemblymember Lee noted that the products could also cause “skin irritations such as redness, itching, swelling, dryness, peeling, and potentially lead to topical dermatitis and eczema.”
When the proposed ban was announced, it met with mixed reaction. The Personal Care Products Council, the industry’s major trade association, described the bill as “well-intentioned, but … overbroad, overcomplicated, and effectively impossible to enforce.” These concerns were not without merit.
In addition to reviewing product ingredients with each sale, the bill would have required cashiers to know whether a product has been advertised as “anti-aging” specifically, and would have required age verification at checkout. Nor was it clear how effective the bill’s safeguards would be, what was intended by the phrase “over-the-counter,” or whether parents or guardians could consent to the purchase.
Spoiler alert: AB 2491 ultimately failed to pass. To date, no other U.S. states have proposed legislation aimed at prohibiting the sale of anti-aging skin care products to children under the age of 13. Similarly, federal law does not restrict the age at which anti-aging skin care products may be purchased; the Modernization of Cosmetics Regulation Act (MoCRA) was silent on the possible impact of anti-aging skin care ingredients on children under the age of 13; and EU law does not impose age restrictions on anti-aging ingredients.
So what’s the problem?
Although AB 2491 failed to pass in California, that’s not to say modified versions of the bill won’t be reintroduced—particularly as Gen Z and Gen Alpha continue to embrace skin care as a form of wellness, entertainment, and self-care.
It’s also important to note that California has not been the only state active in regulating and banning certain cosmetic ingredients. To date, states including California, Washington, Colorado, Maryland, Oregon, and Maine have enacted legislation banning certain intentionally added cosmetic ingredients, with other states considering proposed bans.
It’s important to remember that these ingredient bans are not static, and many contain staggered elimination requirements. And even if certain ingredients are not banned, state legislation may impose certain reporting or disclosure requirements with respect to those ingredients.
Additionally, MoCRA requires companies to maintain records regarding adverse events, i.e., any health-related event associated with the use of a cosmetic product that is adverse, for at least six years (three years for non-exempt small businesses as defined by MoCRA). MoCRA also requires that “serious adverse events” associated with the use of cosmetic products be reported to FDA within 15 business days of learning of the event.
MoCRA also expands the definition of what constitutes “serious adverse event” to include “significant disfigurement (including serious and persistent rashes, second- or third-degree burns, significant hair loss, or persistent or significant alteration of appearance), other than as intended, under conditions of use that are customary or usual.” FDA has not issued any guidance on what constitutes “customary or usual” conditions of use of anti-aging products.
So those are the concerns―now what’s the solution?
Personally, I get it. I remember being a teenage girl in the pre-TikTok dark ages. We didn’t even have filters―we just had to look bad in photos like everybody else. I can’t imagine the pressure girls are under today to live up to beauty standards that simply aren’t achievable without AI. But while I think the bill was well intentioned, age bans on skin care ingredients may pose enforcement and logistical challenges, while still not addressing the underlying anxieties tweenagers confront, particularly when they’re exacerbated by social media.
In the meantime, brands should be aware of potential future legislation and litigation in connection with possible misuse of anti-aging products, use best efforts to ensure that any explicitly anti-aging marketing or promotional statements are directed toward age-appropriate audiences; exercise caution with respect to statements made by social media influencers on social media, who may be speaking to younger audiences; and ensure that products comply with state and federal cosmetic labeling and ingredient reporting requirements.
And as for me? Aging has its perks. I buy skin care with my own credit card now.
Until next month,
Kelly
Questions or suggestions? Reach out to contact Kelly at xnobaare@qhnarzbeevf.pbz.
