Abstract

Excerpted From: Adriel D. Q. Joseph, A Noxious Blend: Phthalates in Personal Care Products Afflicting Ecosystems, Reproductive Health, and Ethnically Diverse Communities; A Case for Regulatory Reform and Viable Solutions, 15 Barry University Environmental and Earth Law Journal 1 (2025) (570 Footnotes) (Full Document Requested)

Opulent notes serve as the cornerstone of quality fragrances that civilizations have relished for eons. For many consumers of cologne and perfume products, fragrances are more than just delightful scents. Fragrances can enrich a user’s persona and character, amplify an individual’s confidence or internal bliss, serve as expressions of one’s preference and style, and even command the attention of others who are enchanted or fascinated by lingering accents in an extrait de parfum.

Personal care products such as body washes, shampoos, soaps, and deodorants are used universally for their desired effects on enhancing hygiene and retaining a pristine look or feel. While we may be ravished by the aromatic compounds of floral, aquatic, or oriental scents of fragrances or the effective use of other personal care products that help people take care of their hygiene, cosmetic or personal care products may cause environmental damage and have detrimental effects to the reproductive system among men and women encompassing pregnancy and childbirth; nonetheless, strong, viable solutions to negate such harmful effects are existential.

Within this modern life, where cosmetic products, such as fragrances or body washes, permeate nearly every environment and are discarded as waste in those environments, there is an amalgamation of mysterious chemical cocktails that raise serious concerns for our environment and the reproductive health of men and women: phthalates, pronounced as “THAL-ates” esters (PAE). Phthalates—a class of chemicals ubiquitously used in personal care products— have seemingly become almost inexorable. Phthalates are synthetic chemical compounds infused into cosmetic or personal care products to improve product quality and performance; for example, diethyl phthalate and dibutyl phthalate can both stabilize fragrances and enhance durability. They are found in numerous personal care products, especially in those with high intake of dermal cosmetic goods. Not only do people absorb phthalates through dermal exposure during the application of cosmetic and personal care products, but consumers may also be exposed to phthalates through inhalation of phthalates that evaporate into the atmosphere or through ingestion of food when phthalates leach into food supplies.

Despite their existence in many personal care products, phthalates are not usually mentioned on the package labels of many products, making it difficult for consumers to know when they are being exposed. In fact, it is rather challenging to decipher and pinpoint which cosmetic or personal care products are exposing people to phthalates because labels from cosmetic products do not consistently list these harmful chemical ingredients, and disclosures tend to be limited.

The obscurity of phthalates as an ingredient in some personal care products persists because some cosmetic brands are not legally required or mandated to disclose phthalates in their product line when phthalates are designated as integral parts of fragrance items, making phthalate chemicals free from disclosure on product labels under a cosmetic brand’s trade secret protection; furthermore, under the Fair Packaging and Labeling Act, the U.S. Food and Drug Administration (FDA) is limited in regulating disclosure of products containing phthalates that are deemed to be a “fragrance” or “flavor” ingredient protected as a trade secret. Therefore, consumers may have difficulty identifying phthalates on product labels, making it difficult to make informed decisions when buying cosmetic products containing these deleterious ingredients.

Despite their widespread uses and purposes, phthalates pose significant harm to natural ecosystems and debilitating health concerns for the reproductive health of men and women conceiving children. Given that phthalates are often embedded in products under the generic term “fragrance,” consumers are not cognizant of their exposure levels and associated risks. In response to concerns about phthalates, efforts have been made to reduce or replace them in some products through regulation and public demand.

Understanding the potential harm phthalates cause to human health and the environment is crucial, especially as scientific studies continue to link these chemicals to reproductive health issues and ecological damage. For pregnant women, phthalates can interfere with hormonal processes essential to fetal development, leading to adverse outcomes such as developmental delays and higher risks of miscarriage. Phthalates also disrupt ecosystems, affecting waterways and marine life, accentuating the need for stronger regulations to prohibit their use as ingredients in cosmetic and personal care products. Unlike the milder regulations established in the United States (U.S.), the European Union (E.U.) enforces more stringent regulations on phthalates contained in cosmetic and personal care items due to health concerns. The current regulatory landscape, particularly in the U.S., offers only limited oversight, leaving vulnerable populations unprotected. Yet, there are alternatives to substitute in place of phthalates that could be safer, nontoxic, and less intrusive to our ecosystems and the reproductive health of men and women birthing children, upon further studies to be implemented by researchers.

The legal and regulatory frameworks existing today appear unsuccessful at obviating hidden risks derived from harmful chemical substances, such as phthalates, because of systemic disclosure gaps and reactive governance approaches, necessitating legal and regulatory reforms and positing the adoption of a novel and potent doctrinal framework that is conducive to establishing regulatory intervention of risk-based matters pertaining to harmful chemical substances and meaningful transparency. This academic law article (“Article”) explores the multifaceted effects of phthalates, beginning with an overview of their prevalence and use in cosmetics and personal care products, including fragrances, body washes, and hairsprays. The discussion then delves into the environmental impacts of phthalates, with a particular focus on Florida’s ecosystems. The Article will immerse into the pernicious consequences of phthalates, which can incapacitate the reproductive functions during pregnancy and childbirth. Next, the Article delineates the disparate consequences that phthalates may pose on diverse groups of racial and ethnic backgrounds. Following this, the legal and regulatory frameworks surrounding phthalates are analyzed, noting disparities between U.S. and E.U. policies.

Finally, the Article proposes solutions, alternatives, and reforms to diminish or eradicate phthalate exposure to foster safer, more sustainable practices. Phthalates create widespread environmental, reproductive, and social harm, and through disclosure loopholes, current legal and regulatory frameworks—especially in the U.S.—are structurally insufficient, inadequate, and ineffectual at addressing the issues associated with phthalate exposure, necessitating comprehensive legal reform grounded on stronger disclosure and transparency, robust restrictions and limitations, and safer alternatives.

Even with the existing legal frameworks addressing aspects of disclosure to consumers and the public, regulation of toxic chemical substances, and the implementation of risk assessments, there appears to be no legal framework that synthesizes these principles into a unified standard governing substances that are hazardous and surreptitious in the sense that there is a lack of consumer disclosures. Conventional regulatory systems of governance, including those grounded in risk-based approaches or assessments, mandate that before regulatory actions or interventions can occur, there must be substantial scientific certainty about the issue or phenomenon being observed. Although consumer protection laws serve their purpose, they appear to focus on disclosure without adequate accountability for latent harm resulting from cumulative exposure to unsafe chemicals, such as phthalates.

Analogously, while the precautionary principle seems to be an influential cornerstone of environmental law on an international scale, such as in the E.U., it appears to be underutilized as an effective tool in U.S. consumer product regulations, and on its own, does not resolve issues of informational opacity. This Article combines these different elements into a single doctrinal framework known as the Concealed Risk Doctrine. The Concealed Risk Doctrine presents a risk-triggered standard that considers information asymmetry, cumulative exposure, and disproportionate impact, while also establishing disclosure, scrutiny, and restriction duties. By integrating these components, the doctrine offers a novel, practical legal approach to closing regulatory gaps regarding phthalates and similar harmful chemicals.

[ . . . ]

In summation, this Article explored the multidimensional impacts of phthalates, starting with an overview of their prevalence and use in cosmetics or personal care products such as fragrances, body washes, and hairsprays. The Article transitions into a detailed discussion on the harmful environmental impacts of ecosystems and wildlife, such as aquatic mammals in Florida, accentuating a strong focus on the ecosystem and natural environments in Florida. Next, the discussion became engrossed in the pernicious consequences of phthalates, which incapacitate the reproductive health of women and men, contributing to pregnancy and childbirth complications. Then, the discussion highlights how phthalates have disparate consequences on racial and ethnic communities. Afterward, the legal and regulatory frameworks surrounding phthalates were analyzed and discussed, which noted disparities between U.S. and E.U. policies. Finally, the Article proposed solutions, alternatives, and legal reforms that may diminish or eradicate phthalates from the environment to foster safer and more conducive practices to protect the human reproductive health system and to ascertain a vibrant, robust, sustainable environment free from phthalates that provide the greatest benefit, securing a better quality of life for all. This Article introduced a novel, legal framework known as the Concealed Risk Doctrine (CRD). The CRD does not just build upon, it extends beyond existing principles within U.S. and international environmental law. The CRD operationalizes elements of the precautionary principle by translating abstruse risk awareness into clear and concrete regulatory triggers to initiate proper enforcement actions.

Simultaneously, it comports with consumer protection doctrines that highlight the need for transparency and informed consent, while addressing their current limitations in disclosure chemical substances. Unlike statutes such as the Federal Food, Drug, and Cosmetic Act or the Fair Packaging and Labeling Act, which are traditional regulatory approaches of limited disclosure requirements, and which execute post-market enforcement actions, the CRD shifts the notion of governance being more focused on proactive regulation. The CRD recognizes the need and demand for regulatory systems that are capable of responding proficiently to complexities, uncertainties, and latent manifestation of harm that characterize modern environmental health risks. If Florida’s infrastructure is overhauled and redeveloped, especially its wastewater management and treatment infrastructure, while effective use of microbes and aerobic biodegradation and anaerobic treatment options is incorporated, then Florida may feasibly see a substantial reduction of phthalates to remediate and preserve the environment and preclude harm to natural wildlife and humans. Scientific and empirical evidence adequately substantiate that most, if not all, phthalate types are deleterious toxins to the environment, wildlife, and humans, meriting and necessitating new policy recommendations and legal reforms of certain laws and regulations. Certain laws, rules, and regulations in the U.S. may need to undergo policy and legal reforms to close regulatory gaps, tighten loose requirements, and provide effective mandates against phthalates. U.S. laws currently do not impose an absolute ban on all phthalates, even though they impose prohibitions on certain phthalates within products such as toys and childcare items. Thus, there should be more inflexible and stringent regulations through a robust and comprehensive legal reform at both the federal and state levels of government, and the implementation of feasible solutions and alternatives to obviate phthalates, to protect the environment and natural habitats of animals, especially aquatic life forms, and the reproductive health of humans.

Adriel D. Q. Joseph, MLS, was Editor-in-Chief of the Environmental and Earth Law Journal and a J.D. candidate at Barry University Dwayne O. Andreas School of Law. Joseph holds a master's degree from Washington University School of Law and a B.A. from the University of Central Florida.