FDA Has Limited Authority Over Toxic Cosmetic Products – Last year the U.S. Food and Drug Administration announced that it had found asbestos contamination in eye shadow, face powder and glitter products sold at Claire’s and Justice, two retailers popular with teens and young women. Asbestos is a naturally occurring mineral that can be found in talc.
But if asbestos is inhaled, it can lodge in the lungs and do permanent damage, including causing malignant mesothelioma and other forms of cancer. Needless to say, it is not a substance you want in powder form anywhere near your nose or mouth.
By the time the FDA announced the test results, which confirmed findings from independent labs two years earlier, Claire’s and Justice had pulled most of the contaminated products from shelves — but only after coming under pressure from the media and safety advocates.
And it’s good that they removed the items voluntarily, because the law does not give regulators the authority to pull personal care and cosmetic products from the market, even when they’re tainted with hazardous chemicals.
That might come as a surprise to consumers. Many no doubt assume the government is empowered to make sure the lipstick, lotions and creams they use every day do not include things that might do them harm. It’s not.
Although the Federal Food, Drug, and Cosmetic Act of 1938 gave the FDA oversight over cosmetics and personal care products like shampoo and toothpaste, and barred those products from containing ingredients that are “dangerous and deleterious,” it didn’t give the agency the same enforcement tools as it has for ensuring the safety of food and drugs.
There’s no recall power. Nor is there any safety review by the FDA before products are marketed. Consumers can sue the manufacturer if they’re harmed by a defective product, but the government isn’t going to do it for them.
This was a point made in a statement by then-FDA Commissioner Scott Gottlieb and Susan Mayne, director of the Center for Food Safety and Applied Nutrition, explaining why their response to the asbestos-contaminated products was to ask all cosmetics and body-care product makers to voluntarily register their products and list ingredients.
“The FDA has limited tools to ensure the safety of cosmetic products,” they wrote.
In other words, when it comes to the safety of the many beauty and body-care products that Americans apply to or slather on their bodies every day, and often over the course of many years, consumers are at the mercy of the manufacturers.
What’s more, the asbestos example isn’t an aberration; toxic chemicals are found in a dizzying assortment of personal care products, from hair dye to nail polish to baby lotion.
Congress should certainly fix the laws regulating cosmetics and body-care products to make them at least as strong at those in the European Union. But given the Trump administration’s zeal to remove regulations, not add them, it makes sense for California to fill the void by passing Assembly Bill 495, or the Toxic-Free Cosmetics Act.
The bill stalled last year under heavy lobbying by the personal care industry before its first committee vote.
Since then, its author, Assemblyman Al Muratsuchi (D-Rolling Hills Estates), and its sponsors have revised the proposal in response to some industry complaints — for example, by limiting the list of banned chemicals to those already banned by the EU — and they say they remain open to addressing other industry concerns.
Under a recently amended version of the bill, the state would ban the sale of cosmetic or body-care products that contain any of 13 chemicals known to cause adverse health effects with regular exposure.
The list includes asbestos, lead and mercury as well as endocrine-disrupting phthalates, which are used in false eyelash glue, and isobutylparaben, a preservative used in skin-care products. On the list too are highly fluorinated chemicals that are used in waterproof cosmetics and anti-aging creams and are associated with cancer and infertility.
The opponents, such as the Personal Care Products Council and the American Chemistry Council, still don’t like AB 495 and probably won’t in any form. They argue that it goes too far and could lead to the prohibition of thousands of products that don’t pose health risks to consumers.
It’s understandable that an industry used to regulating itself would be resistant to rules, but surely there’s room for a law that simply bans the worst of the toxic ingredients.