By Melanie Benesh and Scott Faber, Environmental Working Group
Federal law on cosmetics and other personal care products is badly broken and has not been updated for nearly 80 years. This year, senators have introduced two bills to update the law – but the proposals couldn’t be more different.
One bill from Sens. Dianne Feinstein, D-Calif., and Susan Collins, R-Maine, would finally give the Food and Drug Administration the authority and tools it needs to review and regulate toxic chemicals in personal care products. But a bill introduced this week by Sen. Orrin Hatch, R-Utah, is full of loopholes that would make a broken law even worse.
Consider the differences:
The Feinstein-Collins bill requires manufacturers to show that cosmetics chemicals pose a “reasonable certainty of no harm,” a well-established safety standard that already covers food and pesticides. Hatch’s bill requires the FDA to show that a cosmetics chemical is “not injurious” when used in the usual way – an untested and weaker standard that puts the burden on the agency, not the industry.
The Feinstein-Collins bill requires companies to share ingredient information with the FDA so that the agency’s scientists can better evaluate how consumers are exposed to cosmetics chemicals. The Hatch bill does not.
The Feinstein-Collins bill requires companies to substantiate the safety of personal care products, maintain safety substantiation records, and give the FDA access to those records. The Hatch bill does not require safety substantiation.
The Feinstein-Collins bill requires the FDA to review the safety of five chemicals a year and provides clear rules for those reviews. Hatch’s bill authorizes but does not require reviews, and allows third parties to conduct the reviews. The Hatch bill also says the FDA must identify chemicals for review, but sets no deadlines for the reviews. And under Hatch’s bill, once the FDA has identified a chemical for review, states could not create their own cosmetics laws or regulations – allowing the Trump administration to pre-empt all state action by simply creating a list of chemicals.
The Feinstein-Collins bill makes sure the FDA has the resources needed to keep us safe, providing $20 million from the largest cosmetics manufacturers. The Hatch bill relies entirely on Congress to appropriate funds, with no guarantee of how much would be provided.
The Feinstein-Collins bill would make sure the FDA knows when dangerous products harm us, and gives the agency the power to act. It requires companies to produce annual reports of all adverse effects from use of a product, and alert the FDA within 15 days of a “serious” adverse effect. The Hatch bill only requires reporting within 15 days of “serious” adverse effects – and doesn’t explicitly consider temporary hair loss “serious.”
The Feinstein-Collins bill authorizes the FDA to order a recall of dangerous products, and clearly preserves consumers’ ability to take companies to court if they’re injured by use of a product. The Hatch bill does neither.
To protect workers, the Feinstein-Collins bill requires disclosure of ingredients used in salon products so that salon workers know what’s in the products they use everyday. The Hatch bill does not.
The Feinstein-Collins bill provides important protections for small businesses without sacrificing public health. It exempts companies with sales below $500,000, and home-based businesses with sales below $1 million, from registering with the FDA. It creates a simplified registration process for companies with sales below $2 million unless they produce high-risk products. The Hatch bill exempts companies with net revenues below $1 million from registration and exempts all home-based companies from registering with the FDA. The Hatch bill requires small businesses making tattoo inks to register, but doesn’t require small businesses making other high-risk products, such as those used around the eyes or lips, to register.
For legislators hoping to finally modernize cosmetics law after 80 years of failure, the choice between the two bills could not be clearer. The Feinstein-Collins bill is bipartisan, and has the support of public health groups and hundreds of cosmetics companies, large and small. The Feinstein-Collins bill also meets the principles laid out by the industry’s trade association, the Personal Care Products Association. By contrast, the Hatch bill is not bipartisan, is not supported by public health groups or cosmetics companies, and does not meet the industry association’s principles.
Principles Endorsed by
the Personal Care Products Council
|Create a strong national program for the uniform regulation of all cosmetics.||Yes||No|
|Pre-empt different or additional state and local laws that address cosmetics.||After agency action||Before agency action|
|Require manufacturers to substantiate the safety of products and ingredients.||Yes||No|
|Create an FDA program to review the safety of ingredients and nonfunctional constituents found in cosmetics.||Mandatory review||Authorized, not required|
|Establish mandatory registration of domestic and foreign manufacturing facilities.||Yes||Yes|
|Require mandatory reporting by manufacturers to FDA of serious and unexpected adverse events.||All adverse events||Serious adverse events only|
|Authorize FDA to issue good manufacturing practices for cosmetics.||Yes||Yes|
|Establish appropriate exemptions to prevent inefficient or inappropriate regulation, and an extended phase-in period of compliance for small businesses.||Yes||Yes|
|Require ingredient reporting.||Yes||No|