Duane Morris partners Robert Kum and Cyndie Chang are quoted in the Glossy article “The unseen legal turmoil driving beauty brands to shutter in 2023.”

Despite positive projections about the future of the beauty industry, insiders say brands of all sizes are quietly grappling with unseen legal struggles.

[Founders] blamed, in large part, the California Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Prop 65.

“[Prop 65] requires products sold in California to have a special warning label if use of the product causes an exposure to one or more chemicals identified as causing cancer, birth defects or other reproductive harms,” said  Kum.

There are currently more than 900 chemicals on the Prop 65 list, with more added annually. The list included 235 chemicals when it was released in 1988. Among them are chemicals that may be found in cosmetics, like phthalates, perfluoroalkyl (PFOS) and polyfluoroalkyl substances (PFAS) and UV filters in sunscreens, Kum said.

“Citizen prosecutors have filed more than 30,000 violation notices since Prop 65 went into effect in 1988,” said Kum, adding that settlements get larger and larger each year. “The majority of this amount is attorneys’ fees, with some penalties. Recently, we’ve seen some very large settlements, seeking tens of thousands in civil penalties, as well as hundreds of thousands in attorneys’ fees, not to mention the costs of a potential reformulation.”

As for the cost incurred on brands? “It depends,” said Chang. “If it can be settled or resolved early, it may be tens of thousands. If it goes to trial, it may be hundreds of thousands of dollars.”

To read the full article, visit the Glossy website.