Proposition 65 Cosmetics Case: Titanium Dioxide (August 2015)On July 28, 2015, Judge George R. Hernandez of the California Superior Court for Alameda County ruled in favor of the cosmetics industry, which was in the midst of a major Proposition 65 enforcement action, regarding the use of titanium dioxide in its products. The lawsuit was launched by a public interest NGO that filed a notice of violation of Proposition 65 for cosmetics and skin care products based on the potential harmful exposure to titanium dioxide. The lawsuit could have affected over 50,000 products, such as sunscreens, eye shadows and pressed powders, that contain the ingredient.
Titanium dioxide, which is a commonly used ingredient in cosmetics, is not listed under Proposition 65; however, titanium dioxide (airborne, unbound particles of respirable size) is listed. Titanium dioxide used in cosmetics is typically categorized as a “nanomaterial,” or extremely small particles. However, testing conducted as part of the lawsuit showed that titanium dioxide used in cosmetics is processed with other ingredients, such as colorants, that adhere to the titanium dioxide to create larger particles that do not cause concern.
Judge Hernandez ruled that the mere presence of titanium dioxide in cosmetic products is not sufficient to shift the burden of proof to the defendants. The case did not make it to trial and was decided on summary judgement.