by Dr. Teri Dourmashkin
On Wednesday, June 10, the signers of the Campaign for Safe Cosmetics had the opportunity to participate in a conference call with the CFSC to better understand what would be involved should the Safe Cosmetics Act of 2010 (or HR 5786) be passed. The representatives of the CFSC spoke briefly about the proposed legislation and what would basically be required from small and medium size businesses. Many indie businesses have been very concerned about the impact this bill could have, particularly if it involved exhorbitant costs for safety testing on finished products. The sole purpose of the conference call was to address any questions we had, and to also dispel the many “myths” that the CFSC felt were circulating on the web. The CFSC worked very closely with the sponsors of this bill over the last 2 years or so.
I have to say that I went into this call grudgingly because I was disappointed that the Compact for Safe Cosmetics never alerted any of the signers (I never received any notifications) that this legislation was in the works. We all found out the same time everyone else did. Many other organizations such as the Beauty Indie Network and Personal Care Truth have written extensively on this issue and why they oppose this proposed bill. As a result, a petition was formed and at the time of this writing, thousands of people have signed the petition opposing this proposed bill. Signers of the petition include both businesses who make safe and natural skin care as well as the consumers who buy these products. For the sake of clarity, I would like to point out that none of the companies and consumers who have signed the petition are against safe cosmetics, in fact it is quite the opposite. This proposed bill as currently written is both complicated and vague. In my opinion if enforced the way it is currently written, this bill will create a bureaucratic mess that will not do justice to the companies already selling safe cosmetics or to the consumers which this bill is trying protect.
Here are a few highlights which were addressed during the call:
1) Salons which were previously exempt from FDA labeling requirements (interesting…on the video put out by the CFSC, “The Story of Cosmetics,” Annie Leonard states that the FDA does not enforce any labeling requirements which is false), would now have to disclose all ingredients. Websites would also be required to list all product ingredients as well.
2) Under section 612, all companies would have to register their companies with the FDA. Besides the usual contact information, number of employees would have to be disclosed as well as receipts of gross sales so that a fee schedule could be determined. At this point, the drafters of this bill have no idea what those fees might be. Once they figure out how much this massive project will cost, they will then charge fees accordingly. So, yes, the more expensive it will be to amass the huge data base they are proposing, the higher the fees will be (this was my understanding). All companies making less than 1 million in sales will be exempt from any type of fees.
3) In addition to submitting all of our ingredients to the FDA, we would also need to provide extensive safety data for all of those ingredients. However, the CFSC did state that they were trying to avoid duplicate testing of ingredients. They want these costs to be incurred further up the chain, as in the raw material suppliers. They stated there would be a new clause referred to as the “provider right to know,” which basically means that raw material suppliers would be legally required to provide safety data on all ingredients they supply to contract manufacturers and cosmetic companies. So, we would get this documentation directly from them and then electronically submit the information to the FDA. CFSC stated that in many cases, suppliers often refuse to supply basic information about an ingredient (s). This has not been my experience. Just about every supplier that I have dealt with either directly or through my contract manufacturer has supplied Material Safety Data Sheets (MSDS) which basically gives detailed information on the physical characteristics of an ingredient, toxicological information, and a whole host of safety data including any hazardous situations which may result in using such an ingredient. However, it may be true that some do not. Every Time there is a change in even one of our ingredients (s) or a change in our contract manufacturers or suppliers, we would need to notify the FDA.
4) On the issue of safety testing on finished products, they stated that this would not be required or would be highly unlikely. In other words, we would not be saddled with the prohibitive costs involved in testing finished products for the purpose of detecting prohibited substances whether they are reported in a formula or not (all individual ingredients are already thoroughly tested for safety by the manufacturers of raw materials). They also reasoned that because most of the compact signers were already using safe ingredients, this would not be something that we would likely be dealing with in the future. They did state that some testing might be required if for example, 2 or more ingredients used in a formula could result in the creation of a toxic substance or compound. But, they haven’t yet figured out the specifics on how they would handle such a scenario. According to CFSC, it would likely be assessed on a case by case basis. Another example of possible testing on a finished product could involve the use of “penetration enhancers,” or nanoparticles if their research indicated that these particles could be problematic. However, it was my impression that they were just throwing some ideas around and that this was more of an educated guess than fact.
5) Listing all trace elements on an ingredient label- the CFSC stated that trace elements would be excluded as long as they were present below technically feasible levels (lower than 10 part per billion). One of the signers had asked if every trace element would need to be listed for water, and their response was only if something such as lead was found at unsafe levels. Some were concerned that all trace elements would need to be listed on an ingredient panel. This would have made it unpractical as well as confusing for the consumer. For example, lavender could have as many as 200 trace elements and that would make it impossible to list all of them on an ingredient label. They also stated that if passed, this bill would be in a data collection mode for the better part of 2-3 years. What this means is that no changes would be immediate. However, once their “prohibitive” list of CMR chemicals is released, a company would basically have 2.5 years later to clean up their act or stop using the ingredient (s).
The next step would involve efforts to encourage compact signers to support the proposed bill. In fact, I received a brief survey after the call asking the usual survey questions, but additionally asked if we were planning on getting involved to help promote this bill as well as the video they produced, “The Story of Cosmetics,” either by social media, blogging, or contacting our elected officials. The CFSC did encourage further dialogue and did state that they wanted our feedback.
Regarding the issue of safety testing, please understand that many companies already do testing to make sure their products are safe, such as ensuring that the preservatives they use are effective and will not cause harm. The testing I am talking about is testing for those ingredients which would be deemed unsafe at certain levels or are even prohibited. Since most if not all compact signers never use any of these substances to begin with, it would be unnecessary and unfair to place this financial burden on them. Most of us do extensive research to ensure that the products we put on the market are safe.
Finally, CFSC also stated that this bill would probably go through many re-writes and that they wanted our feedback to make it the best it can be. While I did appreciate that, this conference call did not alleviate all of my concerns. While I did feel somewhat relieved to hear that we would not be responsible for testing finished products (to specifically look for potentially prohibited substances such as lead, formaldehyde, etc. that most of us do not use in the first place) I do not entirely trust this response. I am not saying they were lying, but this is just a draft of a bill and anything can change for better or worse. For example,a recent legislation was (CPSIA – Consumer Product Safety Improvement Act) was signed into law by former president George W. Bush in February 2009 requiring mandatory testing for toxic substances (e.g. lead, phthalates, etc.) in toys and as a result several small toy companies had to shut down because they could not afford the price of testing. From what was reported, none of these companies used lead or any other prohibited substances. The reason this legislation was put into law to begin with was because a few large companies manufactured and imported unsafe children’s products and sold them to American consumers.
It bears repeating that none of us are against using SAFE COSMETICS. It was often our own frustration with the limited selection of natural and non-toxic products in the market place that inspired us to start our businesses. I am a passionate advocate for safe cosmetics and skin care. My main reason for opposing this bill is the current way in which it is written. The FDA could use improvement in the way that it regulates cosmetics, but let’s work together to find a way that would be less burdensome on small and medium size businesses. Recently the Personal Care Products Council (PCPC) announced that they had sent a letter to key health policy leaders in Congress outlining a number of proposed regulatory changes that could improve the FDA’s jurisdiction over cosmetics. While not perfect, this proposal is certainly more practical and reasonable than HR 5786.
