WASHINGTON — For those already felled by fumes from the Brazilian Blowout, it might be small consolation, but lawmakers are pushing ahead with a campaign for better oversight of the beauty business.
Despite its booming growth, the cosmetics industry in the US has been virtually unregulated. The Food, Drug, and Cosmetic Act, adopted in 1938, essentially allowed personal care product companies to self-police.
But rising public concern over bad reactions to makeup, hair dyes, and fragrances, as well as evidence of long-term health risks from some of their chemical contents, has led lawmakers to try to toughen the regulatory framework for the $60 billion enhancement industry.
Last year, Senators Dianne Feinstein (D-Calif.) and Susan Collins (R-Maine) proposed legislation giving the FDA real power to oversee the booming sector.
Introduced in April 2015, the Personal Care Products Safety Act has the support of large multinational companies and their main trade group, which testified last week before Feinstein and the Senate Committee on Health, Education, Labor, and Pensions, of which Collins is a member. The companies said they welcome the change.
It’s unusual for an industry to swap independence for regulation, and the Personal Care Products Council, which represents 600 of the best-known cosmetic companies, has rejected earlier congressional and FDA attempts at a crackdown.
But this time, they’ve endorsed the plan with the enthusiasm of Emma Stone for Revlon — despite requirements to report adverse reactions to the FDA, endure agency review of chemical ingredients, register manufacturing plants, and pay for the privilege.
The question is why?
When Dr. David Kessler, the tobacco-fighting FDA commissioner, left his job in 1997, a reporter asked if there was anything he regretted not getting done. Yes, Kessler said, he was worried about the safety of cosmetics.
Kessler was particularly concerned about red lipsticks, which might contain lead or other harmful chemicals, are reapplied frequently, and have a direct route into the mouth.
Two decades later, the FDA still doesn’t have the power to pursue purveyors of cosmetics and other personal care products that contain toxic chemicals such as lead, mercury, formaldehyde, and lesser-known hazards that have emerged as what regulators call “chemicals of concern.”
Currently, all the government’s public health watchdog can do is take action against a cosmetic if it has reliable information that it is adulterated or misbranded. The only ingredients it does approve before sale are color additives, except coal tar hair dyes, which were exempted in the original law.
“Most people think that FDA has checked and approved all the ingredients in cosmetics, and of course they haven’t,” said Ruthann Rudel, research director at the Silent Spring Institute, an environmental science center in Newton, Mass.
There are hundreds of chemical ingredients in cosmetics suspected to pose health problems. One of the first substances the FDA would review under the Feinstein-Collins proposal is lead acetate, which is used in hair color kits that work gradually, generally in products for men. The European Union has already banned it in cosmetics, and the National Library of Medicine lists it as a probable carcinogen.
The first batch proposed for review also includes formaldehyde-related compounds. The Centers for Disease Control and Prevention says that short-term exposure to formaldehyde, used in hair-straightening treatments, can cause headaches and shortness of breath. Long-term exposure is associated with increased risk of cancer, according to the Occupational Safety and Health Administration.
Sometimes compounds become toxic when two chemicals are mixed. For example, 1,4-Dioxane is a contaminant that is formed by the reaction of two or more other ingredients, generally those used to create suds in shampoos and bubble baths. The US Department of Health and Human Services calls it a “reasonably anticipated carcinogen.” Chemicals that interact to create 1,4-Dioxane have been banned in Canadian consumer goods. Some American companies have started replacing it in their products, but they are under no obligation to do so.
Appearance isn’t everything
But the Feinstein-Collins proposal is not as tough as it looks on first glance. The result of years of negotiations between Feinstein and, more recently, Collins, with industry lobbyists, consumer groups, and company CEOs, the proposal has a few key compromises.
For one, the FDA is required to review only five chemicals a year, beginning with a slate of ubiquitous chemicals and compounds suspected to pose health hazards. If they are able to handle that number, they may choose to add more.
There are at least 57,000 chemicals used in personal care products. According to the Campaign for Safe Cosmetics, women expose themselves to an average of 168 of them every day. Men are generally exposed to fewer.
By reviewing only five a year, the FDA would take 260 years to catch up to the European Union, which has already banned more than 1,300 chemicals used in personal care products, and has restricted another 256.
And, while companies would have to report adverse events to the FDA, those wouldn’t be publicly posted; consumers would have to file Freedom of Information Act requests to see them. That’s in contrast to the way problems from medical devices or drugs are reported — in a public database, although admittedly incomplete.
Perhaps even more important is the plan’s preemption of state regulations. California now has tougher cosmetics regulation than the FDA, and other states are soon to follow. The Personal Care Products Safety Act would override state laws passed after it is enacted.
“The issue of state preemption is really important for this,” said Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists. “States would no longer be able to go above and beyond the federal government on health and safety regulations.”
The bill has attracted mixed support. There is a draft version in the House, being pushed by New Jersey Democratic Representative Frank Pallone. The most crucial support outside of industry is the endorsement of the Environmental Working Group, an organization that rarely finds itself on the side of the chemical business, and is not prone to compromise.
But they have a reason: They believe the Feinstein-Collins bill, while not perfect, offers the best chance in 75 years to make sure that beauty products and personal care items are safe.
The Feinstein-Collins bill “would give FDA the power to review cosmetic chemicals of concern, expand FDA’s ability to know when contaminated products threaten public health, respond to rising imports of personal care products, and give FDA the resources to detect and respond to threats to public health,” said Scott Faber, a lobbyist for the Environmental Working Group.
The March of Dimes, the American Cancer Society, and the Endocrine Society have also all signed on to support the bill, and praised Feinstein and Collins. But the endorsement list is missing some key names, including the Consumer Federation of America, and the Safe Cosmetics Campaign, both of which are active in this area.
“The industry goal is to pass the weakest possible regulation that allows the industry to self-regulate chemical safety and to preempt the states from enacting chemical regulation,” said the Safe Cosmetics Campaign’s director Janet Nudelman.
The proposal may face another obstacle in HELP committee chairman Senator Lamar Alexander of Tennessee. At last week’s meeting, Alexander said he wanted to make sure the FDA couldn’t take a tougher stance on the cosmetics industry with the authority it already has.
The corporations lining up behind the Feinstein-Collins bill present a formidable bloc of donors and lobbying muscle. They are lobbying for regulation, but when it’s time to work out the fine print, they will will insist on a law they can live with.
Many consumer goods companies with large cosmetics divisions run very generous PACs and retain hundreds of lobbyists with strong ties to both Republicans and Democrats.
All told, Unilever’s PAC, its employees and affiliates, for example, have spent roughly $1.3 million on lobbying in the 2015-16 election cycle, according to the Center for Responsive Politics.
Johnson & Johnson (JNJ) spent just under $10 million, and Procter and Gamble spent nearly $7 million on lobbying, according to CRP.
UCS’s Rosenberg finds the amount of money poured into lobbying tough to compete with.
“What it means is that the industry can have someone present in every single congressional office, and in every single meeting with the agency,” Rosenberg said. “No NGO like UCS can match it.”
With the Senate set to adjourn later this week, it would be near impossible for the proposal to have a committee markup this year. More likely, the senators will reintroduce it in January; a similar proposal is making its way through the House.
And if the recent congressional revision of the landmark Toxic Substances Control Act is any indication, the bill has good prospects for passage, eventually.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act was in part a tribute to the late New Jersey Democrat, who had long fought for the bill. But it also reflected an awareness by lawmakers and industry that consumers are increasingly wary about toxic chemicals.
“We all have the right to buy personal care products without fear of exposing our families to cancer-causing chemicals,” said Nudelman.