Hidden Dangers in Cosmetics and the Need for Stronger Regulations

By Katherine Lalor, J.D. Class of 2016 Touro Law Review Senior Staff Member

Images of beauty slam into your vision at every turn. You cannot escape the bombardments of visual stimulation indicating what is beautiful. The little beauty in a bottle may or may not contain harmful chemicals such as formaldehyde or mercury, and the F.D.A. is powerless to ensure that what women and men slather on their face and body is safe. In a recent NY Times article, Their Hair Fell Out. Should the F.D.A. Have the Power to Act? the need to obtain stronger regulations in the cosmetic industry was highlighted.[1] The article also revealed how a new bill will provide the FDA with the necessary authority to regulate the cosmetic industry.[2]

The NY Times article exposed how dangerous cosmetics can be when it reported that Wen by Chaz Dean settled a class action suit for $26.25 million dollars.[3] The lawsuit alleged that the product caused consumers to experience itching, rashes, and even hair loss in large amounts.[4] For instance, a nine-year-old child lost all her hair within days of using Wen’s Sweet Almond Mint Cleansing Conditioner.[5] Although the adverse effect is not universal and there are other consumers who love the product, many other consumers are unaware of the potential dangers.[6]

In addition, there are other cosmetic products on the market that include cancer-causing chemicals.[7] The Center for Environmental Health (“CHE”) based in California discovered that 98 shampoos, soaps, and other personal care products made by Colgate-Palmolive, Colomer, and Paul Mitchell contained cancer causing chemical cocamide diethanolamine (cocamide DEA).[8] California listed the chemical “as a chemical known to cause cancer based on the assessment by the International Agency for Research on Cancer, which evaluated skin exposure tests on animals.”[9] Although the CHE has been able to persuade some companies in writing to change their products by excluding cocamide DEA, all of the companies must be required to exclude this hazardous chemical.[10] The companies that have agreed to the change are Palmolive’s Caprice Shampoo, Lush’s Fair Trade Honey Shampoo, and Michel Design Works’ Lemon Basil Shea Butter Hand Soap.[11]

Furthermore, a harmful chemical is included in almost every cosmetic product as illustrated in safecosmetics.org, Chemicals of Concern.[12] This website lists all of the harmful chemicals included in everyday products such as eyeliners, which consists of carbon black that has been linked to cancer; lip balms, which consists of cancer causing chemical benzophenone; and shampoos for adults and babies that contain formaldehyde that is also found to cause cancer.[13]

The Federal, Food, Drug, and Cosmetic Act was passed in 1938 after a “legally marketed toxic elixir killed 170 people, including many children.”[14] However, this Act mostly regulated the pharmaceutical industry and left the cosmetic industry unregulated.[15] Currently, the F.D.A. has the power to “take action against [a] company only if it could prove a product had been mislabeled or contaminated.”[16] However, the F.D.A. cannot compel companies to release “safety tests and other manufacturing data.”[17]   The F.D.A. relies on consumers to report issues directly to them.[18] This can cause unreliable data since most consumers complain directly to the companies who do not report to the F.D.A.[19] Moreover, once a company is found to have mislabeled or contaminated its product, the F.D.A. can only attempt to persuade the company to do a voluntarily recall.[20]

The legislature is proposing the Feinstein-Collins Bill that would strengthen the 1938 law.[21] Large cosmetic companies such as Estee Lauder, Johnson & Johnson, Procter & Gamble, as well as other diverse groups, are backing the bill.[22] The objective is to re-establish consumer confidence by obtaining “consumer regulations that best serve the public health and give consumers confidence in the products and ingredients they choose for their families.”[23] The bill would require that companies report “serious adverse” reactions directly to the F.D.A. with an annual report of all “adverse events.”[24] The F.D.A. would have the power to “order companies to recall products found to be dangerous.”[25] The bill would also “collect about $20 million in fees annually from beauty care companies to help cover the cost of confirming the safety of about five ingredients each year that are suspected of causing problems.”[26]

However, the Independent Cosmetic Manufacturers and Distributors, which include the distributor of Wen and Mary Kay, are part of the “beauty trade associations that has been aggressively lobbying Congress to block the passage” of the bill. The group claims that “it falls short in providing one clear national and uniform safety standard.”[27] An alternative bill has been proposed that would still require companies to notify the F.D.A. of “serious cosmetic adverse events,” but “it would not grant the agency the power to order a recall or collect industry fees to pay for new programs, such as the safety evaluation of cosmetics ingredients.” [28] Finally, it would ensure that the supporters of this alternative bill would “broadly and retroactively pre-empt any tougher state laws.”[29]

The need to regulate the cosmetic industry is long overdue, and the Feinstein-Collins Bill will ensure that products consumer’s use are safe. Currently, the cosmetic industry is not mandated to report adverse reactions even if someone dies using their products.[30] An independent party must oversee the ingredients used in cosmetics not only for the safety of consumers but also to relieve the consumer’s fear and confusion in using cosmetics.[31] The Feinstein-Collins Bill will give the proper authority to the F.D.A.[32] The bill will raise revenue that will be used to test products and can require companies to pull harmful cosmetics off the shelves.[33] The alternative proposal would not fully safeguard consumers because it lacks the resources to raise revenue used to test the products and it would limit the power the F.D.A would have in recalling destructive cosmetics.[34] Losing your hair can be traumatic especially if you are a nine-year-old girl. Having the power to prevent the effect of hair loss or a life-threatening illness such as cancer is imperative and can only be accomplished with strong regulations.

[1] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] L.V. Anderson, The FDA Can’t Recall Dangerous Cosmetics, and the Industry Wants to Keep It That Way (Aug. 16, 2016), http://www.slate.com/blogs/xx_factor/2016/08/16/the_fda_can_t_recall_dangerous_cosmetics_but_a_bill_could_change_that.html.

[7] Lawsuit Launched s Testing Finds Caner-Causing Chemical in Nearly 100 Hari Care and Personal Care Products, (Aug. 27, 2013), http://www.ceh.org/news-events/press-releases/content/lawsuit-launched-testing-finds-cancer-causing-chemical-in-100-shampoos-haircare-products/.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Chemicals of Concern, http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/,(last visited Dec.1, 2016).

[13] Id.

[14] U.S. Food & Drug Administration, www.fda.gov (last visited Nov. 12, 2016).

[15] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[31] L.V. Anderson, The FDA Can’t Recall Dangerous Cosmetics, and the Industry Wants to Keep It That Way (Aug. 16, 2016), http://www.slate.com/blogs/xx_factor/2016/08/16/the_fda_can_t_recall_dangerous_cosmetics_but_a_bill_could_change_that.html.

[32] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[33] Id.

[34] Id.

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