Does the FDA have authority to ensure your baby’s bubble bath is free from carcinogenic ingredients like formaldehyde? If FDA found harmful levels of such ingredients in a product, could it enforce a recall? In 2012, if a company decided to include arsenic in face cream, would it have to notify the FDA first?

Rep. Ed Markey (D-MA) who introduced the Safe Cosmetics Act to Congress last year, fired off these questions during Tuesday’s Congressional cosmetics hearing, the first in more than 30 years, knowing the answer—no to all of the above—defies reasonable expectations of cosmetics industry safety.  

Under the Food, Drug and Cosmetic Act established in 1938, the FDA doesn’t require premarket safety testing or full ingredient disclosure on labels. And if potentially dangerous levels of toxic ingredients do end up in products (which does happen: consider recent news about dangerous levels of formaldehyde in Brazilian Blowout products or mercury levels linked to mercury poisoning in skin-lightening creams), the FDA also can’t enforce recalls.

But this could all (or at least some of it) change soon.

The debate over tighter legislation

Last month, the Campaign for Safe Cosmetics put pressure on the House Energy and Commerce Committee with a letter [PDF] signed by 100 environmental groups and businesses, including natural personal care companies California Baby, Weleda, and WS Badger Company.

“This is a critical time for the future of cosmetic safety in the United States. Industry, environmental groups and both parties seem to agree that the failed 1938 cosmetics laws need to be updated, but the million-dollar question is, will it be meaningful reform or will industry write its own rules and make a bad situation worse?” said Janet Nudelman, policy director of the Breast Cancer Fund, in a press release from the Campaign for Safe Cosmetics. 

During the March 27 hearing, cosmetic-, health- and environmental-industry representatives discussed how the proposed changes would impact suppliers and manufacturers in the mass and natural cosmetics markets.

Like many in the natural personal care industry, Debbie May, CEO of soap ingredient supplier Wholesale Suppliesplus, supports increased FDA authority such as enforcing recalls and ingredient testing and disclosure. But during the hearing, she also pointed out aspects of updated legislation that could have negative effects on small, independent manufacturers.

“We personally inspect each ingredient and have our hands in every part of the manufacturing process. We do not support reporting to FDA individual ingredients because we frequently buy small quantities of ingredients several times a week,” she said. “We want to make sure small businesses have the same opportunities to grow.”

She also said that if regulations vary from state to state there could be confusion and additional barriers for small businesses.  

Mass vs. natural beauty companies

Conventional brands and some small businesses have raised concerns about how stricter legislation regarding ingredients could impact innovation, with the risk of current chemical levels in cosmetics shaping up to be the main source of debate between mass and natural companies. 

Halyna Breslawec, PhD,
 chief scientist and executive vice president for science of the Personal Care Products Council—a cosmetics trade association representing 600 brands including Elizabeth Arden and L’Oreal—said “simple but important” changes are necessary to bring legislation up to date. But when it comes to safety, she said the cosmetics industry performs its due diligence, putting $3.6 billion into research and development to ensure safety of the 2,000 new products each year. 

But are any chemical levels acceptable in cosmetics?

Michael J. DiBartolomeis, PhD, who heads up the California Safe Cosmetics Program that implements many cosmetics regulations not currently enforced under the FDA—testified that companies have reported to his office (mandatory under the California Safe Cosmetics Act of 2005) 17,060 personal care products that contain at least one of 96 carcinogens or reproductive toxicants. He concluded the hearing by saying that science or voluntary testing won’t necessarily ensure cosmetics are safe for long-term use when you're dealing with these ingredients.

“For most products that contain chemical carcinogens, the dose and risk are difficult things to analyze. Carcinogens should really not be in these products at all, especially when they’re being used from infancy all the way through the lifespan.”