Loyola University Chicago School of Law, 2020
It is no secret that the beauty industry in America is frighteningly under-regulated. Cosmetics companies and beauty brands have managed to escape meaningful regulatory oversight for roughly a century and are largely left to self-regulate. In 2017, the global cosmetic products market was valued at $532 billion and is expected to reach a market value of $806 billion by 2023, registering a compound annual growth rate of 7.14%. Despite the colossal financial growth, regulatory shortcomings leave much to be desired by consumers. On the back of numerous harmful side-effects scandals and multi-million dollar class-action settlements, the FDA must grapple with renewed demand for cosmetics regulation as new beauty trends emerge.
Cosmetic oversight has been historically insufficient
The most famous beauty-related scandal was arguably when Chaz Dean’s line of Wen hair care products caused consumers hair loss, scalp burns and irritation, resulting in a $26 million settlement of the resulting class-action lawsuit. Once the Food and Drug Administration (FDA) finally started to investigate the claims, they tallied 1,386 more complaints of hair loss and scalp irritation. After the scandal, the FDA suspiciously failed to implement any meaningful regulatory oversight to prevent another similar occurrence. Wen products are still available for sale in America.
The FDA derives its authority over the beauty industry from the Federal Food, Drug and Cosmetics Act (the “Act”) which was passed in 1938. The roughly two page long Act has seen effectively no expansion of power or oversight since its inception. In addition to the Act, legislation in food and drug law includes the passage of the Fair Packaging and Labeling Act in 1966, but little else pertaining specifically to the regulation of cosmetics has passed for the past 53 years. Historically, regulation of cosmetics has focused mainly on regulating adulterated or misbranded products, or products that are falsely packaged.
What will finally prompt the FDA to act?
A slew of new beauty trends aimed at feeding an insatiable consumer base may finally spark increased regulation of the beauty industry. Trends in consumer awareness of health, diet and wellbeing have been underscored by the recent appearance of natural and fresh “small-batch” beauty products. The increased concern for consumer wellbeing has led to the increased education regarding specific cosmetic ingredients and the effect of their use on the body. Brands that advertised their products as “natural” or “organic” are now under fire for failing to deliver on their promises.
A recent class-action lawsuit alleged that a well-known brand, Tarte, which advertised its products as “high performance naturals,” actually produced products containing synthetic ingredients. Plaintiffs in the suit felt that the products should not be labeled as “natural” because they contained synthetic, man-made ingredients. Consumers generally understand “natural” to mean that the product contains no man-made ingredients.
Current consumer views and corresponding regulatory oversight are unfortunately misaligned. Under the Food, Drug and Cosmetics Act, along with the Fair Packaging and Labeling Act, labeling products as natural or organic when they do not contain these types of ingredients does not qualify as misbranding. “Currently, the FDA does not define words like ‘natural’ and ‘clean,'” said Lindsay Dahl, the senior vice president of Social Mission at Beautycounter, a cosmetics and skin-care company that advocates for stricter regulations in the beauty industry. Aside from official certifications, like USDA Certified Organic or Leaping Bunny, brands are free to take liberties when marketing their products. The acts also do not require the FDA to recall potentially dangerous items or monitor the ingredients used in products for safety or authenticity. This current regulatory scheme absolutely fails to reflect the safety interests of the consumer which inevitably leads to harmful consequences.
The health consequences of the lack of regulation are jarring as “independent researchers have found asbestos in glittery products marketed to young girls; they’ve linked chemicals in nail polish to serious health problems in nail technicians; and they’ve traced reproductive health issues and mercury poisoning to hair and skin products used by many women of color.” Considering the rise in “beauty influencer-culture,” where social media “celebrities” act as conduits for a brand to sell products through social media, it is especially crucial that everyone is properly informed of the ingredients in the products and their potential effect on consumers. More importantly, it is crucial that there is a mechanism for enforcing safety and branding standards for increased protection.
Proposed legislation creates possibility of stricter regulation
It has been roughly 30 years since Congress last attempted hold the cosmetics industry accountable for health and safety problems caused by their products. In May of 2017, Senators Dianne Feinstein and Susan Collins introduced the bipartisan Personal Care Products Safety Act. Later that year, Senator Orrin Hatch introduced the competing FDA Cosmetic Safety and Modernization Act. Both bills include mandatory reporting, registration of cosmetic facilities and ingredient review from the FDA; “however, only the Feinstein-Collins bill would give the FDA the authority to order mandatory recalls and conduct annual investigations on the safety of five cosmetic contaminants.” The Feinstein-Collins bill also called for the largest cosmetics companies to fund the FDA to the tune of $20 million for sufficient monitoring resources. Although the proposed legislation seemed outwardly promising and garnered massive support from the cosmetics industry and consumer health and safety organizations, to date there has been no update on the legislation and whether or not a vote was taken.