The Attorney General, Edmund Brown, has brought numerous lawsuits enforcing Proposition 65, which is a California law created to protect the public from toxic substances in consumer products, but has concluded that in this case no action is warranted.
The issue of lead in lipsticks hit the headlines last year after the Campaign for Safe Cosmetics (CSC) published research claiming that many popular lipsticks contain unacceptably high levels of the poisonous metal.
Following the publication of the CSC report entitled "A Poison Kiss: The Problem of Lead in Lipstick", Brown says he has received several notices of violation under Proposition 65.
Because the issue is of great public concern Brown has published a public statement explaining why the levels of lead in lipstick identified in the report do not represent a reasonable claim.
Unlike several other critics of the CSC report, the Attorney General does not defend lipstick manufacturers by arguing that the quantity of lead absorbed through the lips is less than it would be if the metal was ingested.
Instead the analysis considers the amount of lipstick used by women in relation to the Maximum Allowable Dose Level (MADL) for lead laid down by the Office of Environmental Health Hazard Assessment (OEHHA).
The MADL is set at a level where no noticeable effect is observed at over 1000 times that level and under Proposition 65 businesses are required to provide a "clear and reasonable" warning if they cannot prove that average exposure is below the MADL.
For the lead in lipstick case to be established under Proposition 65 it must be shown that exposure to an average user of lipstick is above the MADL for lead, which is 0.5 micrograms per day.
The Attorney General concluded that, assuming the data in the CSC report is correct, a duty to warn the public could not plausibly be considered under Proposition 65.
He said no such duty would arise until concentrations of lead reached 5 ppm in lipstick and the CSC report only found lipsticks with a maximum level of 0.65 ppm.
The conclusion was reached by considering data on average use of lipstick in peer-reviewed literature.
Studying the available data the Attorney General took the assumption that the average consumer uses 100 milligrams per day of lipstick.
Consequently exposure to lead falls well below the 0.5 micrograms per day maximum level even when the lipstick used has the levels of lead described in the CSC report.
The Attorney General added that critics of the CSC report may also argue that the lead is not actually absorbed via the lips.
He said reliable data on the matter was not available although reason suggests that the amount absorbed is at least some fraction of the total.
Following an exchange of information between parties over the violation notices under Proposition 65, Christine Deubler, represented by Del Mar Law Group has decided not to proceed with her claims while Whitney Leeman, represented by Hirst & Chanler intends to continue.