Patchwork: lovely for quilts. Not so great for laws.
August 20, 2011
I know that you must be tired of me talking about HR2359 (the “Safe Cosmetics Act of 2011”). Just in case you haven’t been playing along at home, you can read about this disastrous legislation here, here and here. If, gentle readers, you are indeed tired of hearing about, I can only reassure you that I am very, very tired of talking about it. I’m busy running not one but two businesses, raising two children, preparing for a couple of international trips, gearing up for a new school year, taking care of five animals (insanity, I know) and failing miserably at keeping my house tidy. Which means the very last thing I want to do is defend small beauty companies (mine among them) from yet another irresponsible legislative challenge. And yet, here we are again…
For a few years now, a group of small business advocates representing the cosmetics industry has been on Capitol Hill, engaging lawmakers with regards to pending legislation. During one such series of meetings, three of us trekked to DC in December of 2009 to discuss various developments in the aftermath of the FDA Globalization Act of 2009. During that visit, we had an opportunity to meet with representatives from the Personal Care Product Council, the largest industry trade group representing the major players in the personal care industry. We mentioned a few whispers we had heard about state cosmetics legislation beginning to percolate. I will never forget the numbness I felt when the representatives from PCPC (who have far more eyes and dollars with which to monitor events) told us that they’d been tracking more than 150 pieces of state legislation that could impact the cosmetic industry over the previous 12 months.
One hundred and fifty pieces of legislation. That boggled my mind in December of 2009 and it continues to astound me today. In theory, all fifty states could pass their own set of cosmetic laws, creating a scenario by which small businesses would need to not only comply with the federal guidelines for formulating, testing, labeling and distributing cosmetics, but fifty separate sets of laws. The next day, we met with the representatives of the FDA’s Office of Colors & Cosmetics and raised the query with them: “what would happen if states begin to pass a patchwork of cosmetic legislation that most likely won’t be in alignment with federal law?” Their answer: You’ll either find a way to become compliant with the laws of every single state or you’ll chose where you can do business.
I don’t mean to sound apocalyptic, but that’s truly a worst case scenario for everyone: multinational companies, consumers and small businesses. Multinationals will literally spend billions each year on compliance. Consumers will bear the burden of all those billions in the form of higher prices on everything from their toothpaste to their shaving cream, while enjoying less choice when it comes to which products are available in their area. Thousands of small businesses will be shuttered, because complying with fifty sets of laws is akin to balancing the entire world on your pinky…impossible. Small businesses that have traditionally been at the forefront of natural products will be forced to do one of two things: add a full-time legal staff to monitor and ensure compliance with fifty sets of legislation and fifty potential registrations (and maybe even fifty sets of labels for the same product!) OR grow their customer base exclusively within their state. Think you’re safe selling on the internet? Not so fast- if you ship a single tube of lip balm to a North Carolina, you’ll need to be in compliance with North Carolina cosmetics laws…even if you manufacture in Nebraska.
Donna Maria Coles Johnson of Indie Beauty has consistently raised the possibility of federal preemption during our meetings. Essentially, the US federal government can design a set of laws on a particular subject and preempt the states from acting, meaning that federal law takes precedence and trumps anything that individual states might legislate. Each and every time that federal preemption has been raised, those in the room gently shake their heads, flash regrettable smiles and assure us that this administration would never consider federal preemption for cosmetics.
Colorado was one of the first states to attempt passage of their own cosmetics regulations in early 2010. Thankfully, the hearings for that legislation came to light just days before they were scheduled to occur and several souls scrambled to get there (bless them). They had front row seats to hear Susan Roll, a founding member of the Campaign For Safe Cosmetics, admit under oath that “I wish I could say more. I wish I knew more of the science. I wish we had more of the science frankly.” Whaaaaat? They’re making radical changes to an industry that millions of people depend on based on hunches, intuition and guesses? Yes, indeed. The legislation was summarily voted down soon after.
So why am I dredging all this up to the surface again? My astute friend Kayla Fioravanti blogged yesterday about a piece of cosmetic legislation, H02361 originating out of Massachusetts, slated for public hearings on September 13, 2011. Once again, we’re staring down the barrel of an ill-conceived piece of legislation that grasps at straws rather than facts and seeks to establish regulatory bodies which have sizable powers coupled with questionable motives. Take note of this passage in particular:
“Authoritative body”, any federal, state, or private agency or formally organized program or group recognized pursuant to the General Laws as being authoritative for the purpose of identifying chemicals that cause cancer, or reproductive, or developmental toxicity.
From Kayla: “My concern with this section of the bill that an ‘Authoritative Body’ is defined as ‘any federal, state, or private agency or formally organized program or group…’ This leaves the door wide open with a welcome in sign for unscientific and alarmist groups such as the Environmental Working Group (EWG) and The Campaign for Safe Cosmetics (CFSC).”
Think that’s a stretch? Well, scroll on down to Section 4, which calls for the creation of a commission dubbed the “Commission on Safe Cosmetics” to study and report on the implementation of the Massachusetts Safe Cosmetics Act, as well as the need for additional legislation to regulate cosmetics sold and distributed in the commonwealth. Who sits on that panel? A consortium of state officials, toxicologists, owners of businesses in the commonwealth that sell cosmetics, “at least 1 of which has signed the Compact for Safe Cosmetics.” That’s right: they wrote themselves into the bill. The Campaign’s fingerprints are all over this; they’re not even shooting for subtlety these days. If you’re unfamiliar with that group, I invite you to read a bit of background, which includes why Bella Lucce withdrew its support from their campaigns.
I wish I could tell you that Massachusetts was an isolated case. But perhaps you should meditate on this little gem from California Assembly Bill 237, currently awaiting a hearing date assignment: “This bill will require any manufacturer of cosmetics that are sold in the state [California] that does not currently comply specified parts of the federal Food and Drug Administration Voluntary Cosmetic Registration Program to provide the department with information disclosed through that program.”
Remember the federal small business registration exemption in H.R. 2359 that many people paraded about as a total victory? It won’t really matter if you manufacture cosmetics in the state of California. Or travel there to exhibit at a trade show. Or have an Etsy site and ship a body scrub to a client in California. Because the state law will require that you now deliver all the information you didn’t have to surrender to the FDA to the state of California. Oy.
Are you ready to roll your sleeves up and get busy reaching out to our legislators, making them aware of the fallacies inherent with patchwork state laws for cosmetics? I certainly hope so…we’re going to need you.