Last year, consumers linked Wen hair products to sudden and dramatic hair loss. The story generated a flurry of national coverage and spurred increased interest in just how closely the Food and Drug Administration (FDA) regulates our cosmetic products. Indeed, Wen hair products are not alone in causing dangerous side effects and containing disconcerting ingredients: Consumers have raised alarms over formaldehyde in hair straightening products, mercury in skin creams, and an array of toxic chemicals in children’s face paint, including lead, cadmium, toluene, formaldehyde, and others.
Currently, the FDA has shockingly little authority to regulate personal care and cosmetic products, which comes as a surprise to many consumers. In contrast to the rigorous testing pharmaceutical products must undergo before they can be marketed and sold, cosmetics and personal care products need not meet exacting federal standards. The innumerable chemicals in cosmetic products don’t need be tested or even disclosed. Companies are not required to report consumer complaints of adverse reactions to the FDA, and even when FDA does become aware of a problem with a product, it has no authority to issue a mandatory recall after a product is linked to consumer harm. Under current law, FDA can encourage a company to issue a voluntary recall, and only then if a product has been mislabeled or contaminated.
Even before the high-profile Wen episode, the need to address FDA’s lack of oversight authority attracted Congress’ attention. In the Senate, Sens. Dianne Feinstein of California and Susan Collins of Maine introduced the Personal Care Products Safety Act (S. 1014) on April 20, 2015, and Reps. Frank Pallone and Leonard Lance, both of New Jersey, recently released a discussion draft of a companion bill in the House. These bills draw attention to the need for increased regulation of the cosmetics industry, but they contain troubling provisions that could steer cosmetic regulation off-course.
The two bills do correct some of the deficiencies in FDA’s current ability to conduct oversight of the cosmetics and personal care industry. For example, the Senate bill gives FDA the authority to issue mandatory recalls and test ingredients. However, it would only require the agency to test five ingredients per year, even though thousands of untested ingredients can be found in cosmetic and personal care products. It would also rely on fees charged to the industry to fund ingredient testing. The bill proposed by Pallone and Lance includes many of these same provisions, and the sponsors are also seeking input into whether the bill should include a federal preemption provision.
Federal preemption of state law would not help consumers interested in safer cosmetics and more accountable manufacturers. Federal preemption could prevent consumers from suing manufacturers over products that have harmed them if those products complied with federal standards.
Such a restriction would be unpopular among those consumers that experienced hair loss after using Wen products. Many of them looked to the civil justice system to hold the company accountable by filing a class action lawsuit; at least 17,000 people have joined that suit. A federal preemption provision in a federal law could threaten such a suit. Furthermore, federal preemption would thwart states from instituting standards for cosmetics that are more protective than federal standards.
If there are any doubts about how federal preemption in this realm would impact consumers and manufacturers, a group of mid-sized companies that oppose increased federal oversight of cosmetics have voiced support for a competing bill that includes federal preemption as a key component. Introduced by Rep. Pete Sessions of Texas, the bill, the Safe Cosmetics Modernization Act, would also broaden the definition of “cosmetic” to include some topical creams that would otherwise be categorized as a drug. In other words, federal preemption in the cosmetic industry goes hand in hand with reduced regulatory safeguards for consumers.
While some cosmetic and personal care product manufacturers are focusing on the political implications of consumers’ increased interest in product safety and transparency, others are looking at the current lack of regulation as a market opportunity, in ways that both satisfy and deceive consumers. Some companies capitalizing on consumer concern merely add words like “natural” to product labels, though the ingredients in the products might be anything but. But others are manufacturing and marketing products that are made from natural ingredients and free of chemicals of concern, building consumers’ trust and loyalty with abundant transparency. They recognize that as long as consumers cannot rely on FDA to implement safety standards, brands that go out of their way to ensure healthy and safe products will stand out. What’s more, consumer preference for these brands could help shift market trends until Congress steps up to pass legislation that makes our cosmetics safer.