Bipartisan lawmakers are looking to regulate shampoos, makeup, perfume, and other personal care products more stringently, which could result in having the government inspect factories and ban ingredients to ensure safety.
The cosmetics industry for more than 80 years has enjoyed loose oversight from the Food and Drug Administration, the agency tasked with overseeing medicines, food, and medical devices. Now that the cosmetics industry has grown to a $ 60 billion-a-year market and has suffered some high-profile lawsuits, some members of Congress are looking for the FDA to police cosmetics more aggressively.
Rep. Frank Pallone, D-N.J., chairman of the House Energy and Commerce Committee, and Rep. John Shimkus, R-Ill., are leading the effort. They are circulating a discussion draft of legislation to businesses and advocacy groups and expect to have feedback by the end of March. The Subcommittee on Economic and Consumer Policy, part of the House Committee on Oversight and Reform, scrutinized cosmetics ingredients with links to cancer in a March hearing.
Congress came close to making changes to the cosmetics industry in the late 1980s, but ultimately the efforts flopped. Recent high-profile complaints about cosmetics may make legislation newly viable.
The FDA in early March warned the public that Claire’s Stores Inc. was selling makeup to teens that contained asbestos, a mineral that can cause cancer and serious breathing problems. Claire’s disputed the finding but voluntarily pulled the makeup from its shelves. It initially refused to issue a recall as the FDA requested, but did so after an unusually strong statement from the FDA claiming the agency is hamstrung in protecting the public.
“These findings serve as an important reminder that under our current authority, the FDA only has limited tools to ensure the safety of cosmetics products,” the statement read. “We are dependent on manufacturers to take steps to ensure the safety of their products.”
Other incidents that have caught lawmakers’ attention include a lawsuit by roughly 12,000 people against Johnson & Johnson alleging that asbestos in baby powder caused them ovarian cancer. The company has said its product is safe and does not contain asbestos, but a California jury awarded $ 29 million to a woman who filed a suit. Wen Hair Care paid 200 people a settlement after allegations that its products caused hair loss, but the company did not admit fault.
Proponents of stricter regulations say these examples underscore the need for an update.
“It very well may be the case that many of the ingredients used in cosmetics are perfectly safe to use and we know that many companies are trying to do the right thing,” said Melanie Benesh, legislative attorney at the Environmental Working Group, which is pushing for broader regulation. “But we shouldn’t have a regulatory honor system where we as consumers are simply trusting companies to do the right thing.”
The FDA has limited policing authority now. It can ask a manufacturer to stop selling a product, but it cannot force any changes to be made to it. The agency is allowed to ban certain chemicals from products and to require warning labels, and it also has an online reporting tool where people can report side effects.
With any new regulations, Republicans worry about overburdening small businesses or generating price increases. The cosmetics industry has usually been sensitive to consumer complaints, and its ingredients are generally safe and sold over the counter at most stores.
“Any federal government action should be guided by the best available science and based on real, quantifiable evidence to consumers, not by fear or desire to simply act,” Rep. Michael Cloud, R-Texas, said at the House hearing. “It should be tailored to the problem at hand and designed to limit unintended or secondary consequences.”
Within the industry, trade groups and companies have framed themselves as supporters of reform. Many backed previously introduced legislation known as the Personal Care Products Safety Act from Sens. Dianne Feinstein, D-Calif., and Susan Collins, R-Maine. The bill would have let the FDA order recalls and evaluate the safety of certain ingredients. Serious problems that cause hospitalization, disfigurement, or death, would need to be reported to the FDA within 15 days.
To fund all of these new FDA responsibilities, the bill would have collected user fees from companies. This practice is common for medical devices and medicines, but not for cosmetics. Conservatives tend to resist user fees because they can make products more expensive, and the Personal Care Products Council, the leading trade group for cosmetic and personal care products, left user fees out of its principles for legislation.
“For more than a decade, our industry has been working with a diverse group of stakeholders and with members of Congress — on both sides of the aisle — to find a bipartisan solution,” said Jamie Kurke, spokeswoman for the Personal Care Products Council.