Congressional Blowout Over Cosmetics Law Reform

Today, the House Energy and Commerce Subcommittee on Health held a hearing on cosmetics regulation to consider whether Congress should beef up federal law to ensure public health and safety. Ironically, many calls for federal action came from industry, mostly small firms that simply want the freedom to innovate and market products across state lines without running up against 50 different sets of rules and who want to restore consumer confidence about the safety of their products.

Unfortunately, federal action may move the debate in a different, not-so-positive direction, particularly given the viewpoints expressed by lawmakers who will craft the “reforms.”

The ultimate problem is that these lawmakers focus on hazard rather than risk and they downplay, if not largely ignore, the benefits of the products. Hazard-based standards only consider whether something has the potential for harm at some level or under some specific circumstance. A chemical may be dubbed “hazardous,” even if it poses little risk at existing exposure levels. For example, water can be considered hazardous because excessive consumption can produce fatal “water intoxication.”

Risk involves the probability that something will happen. For example, the risk of water intoxication is low from taking a few sips of water, but the risk level increases an individual continues to consume the water at higher and higher levels. But the hazard posed by the water remains the same in all instances. Likewise, we have many “hazardous” chemicals in our homes — everything from cleaning supplies to bug spray to olive oil (which can make you slip if spilled on the floor). Each can be a hazard, but the risk depends on how we use them. Fortunately, we can benefit from each of these products while managing the risks to keep them low.

Accordingly, hazard assessment alone is not a good justification for regulation, but instead is usually one step in the risk assessment process. To determine actual risk, regulators must then consider actual or estimated exposures. Yet current regulatory trends are moving toward a focus on using hazard alone as a justification for regulation.

Rep Janice D. Schakowsky (D-Ill.), sponsor of the cosmetic law reform bill–the so called “Safe Chemicals Act” (H.R. 2359) — repeatedly focused on the “hazards” posed by chemicals during the question and answer session. Rep. Schakowsky’s arguments gained support from Dr. Michael DiBartolomeis, who gave testimony representing the California Department of Public Health. During the question and answer session, he stated that no cosmetic product should contain any “carcinogen.”

DiBartolomeis completely disregards the fact that it’s the dose that makes the poison. Many chemicals are classified as carcinogens simply because extremely high levels give lab rats cancer, even when there is no measurable impact on humans exposed to trace levels. If we followed his advice, we would have to also ban broccoli, carrots, and coffee because high levels give lab rats cancer.

Given such nonsense from members of Congress and government regulators, “reform” could be dangerous for the industry and consumers who might see lower-quality products as a result. In fact, Schakowsky’s bill would impose a host of information mandates and taxes on the industry that will be expensive — particularly for the many small businesses selling specialty products — simply because lawmakers want to regulate all possible “hazards.”

There have been few problems caused by cosmetics under existing law to warrant such an extreme regulatory approach. Still bill supporters point to one case where a hair product — the Brazilian Blowout — caused irritations and other health problems. But the problem did not result because existing law is too weak but because the product did not comply with it. Fortunately, the issue was resolved using existing regulatory authorities. See more on that the “Brazilian Blowout” in CEI’s paper on cosmetics, which addresses the issue in detail within the appendix.

In addition, the bill would demand that companies prove that their products pose “reasonable certainty of no harm,” which essentially amounts to a zero risk standard — technically impossible to meet. EPA applies that standard to pesticides, and as a result, has removed many valuable pesticide uses despite little evidence of any problems.

The final result of the cosmetics “reform” may be the elimination of valuable products, increasing health risks. For example, what might happen if regulators ban formaldehyde, which is used as a preservative in cosmetics? Some products may spoil exposing consumers to infectious agents. That’s exactly what happened with one company, Arbonne International, removed it from their products in an effort to be “green” (see CEI paper for details).

Image credit:  zaimoku_woodpile on flickr