Policy gaps and unsafe products

Four federal agencies are responsible for regulating hair straighteners laced with toxic chemicals – a bureaucratic headache as far as consumers are concerned.

• The Food and Drug Administration, charged with ensuring cosmetic safety.
• The Federal Trade Commission, which can take action against companies that make misleading claims.
• The Environmental Protection Agency, which conducts risk assessments of chemicals to which Americans are exposed and sets pollution limits.
• The Occupational Safety and Health Administration, which is expected to ensure that manufacturers and salon operators provide workers with accurate safety information about products that emit formaldehyde, and that salons meet formaldehyde vapor limits.

Overlapping jurisdictions can lead to long delays as agencies wait for others to act first. As long as Washington plays hot potato over who should take the lead, the only ones burned are American consumers and salon workers.

FDA overlooking slam-dunk chance to champion cosmetics safety

FDA helps to oversee the safety of more than a quarter of the U.S. consumer economy, including cosmetics such as hair straighteners. The federal Food, Drug, and Cosmetic Act (FDCA) gives FDA authority to go after cosmetics that are adulterated – in other words, harmful under ordinary conditions of use – or misbranded – for example, containing false or misleading labeling.

The Fair Packaging and Labeling Act (FPLA) empowers the agency to require that cosmetics list ingredients on their labeling. Otherwise, they are considered misbranded.  But there is a loophole. Hair straighteners and other products labeled “for professional use” are exempt from this requirement. Congress limited the law’s scope to products typically sold in ordinary retail outlets rather than directly to professional stylists.

Once FDA determines that a cosmetic is adulterated or misbranded, it has a range of options. The agency can work with the U.S. Department of Justice to build a case in federal court to justify seizing cosmetics from the market or to stop companies from selling them. However, such actions are rare because FDA has the heavy burden of proving its case in court – a costly endeavor, particularly when pitted against companies that have deep pockets or industry’s backing. More commonly, FDA can issue warning letters to companies or publicize risks associated with certain cosmetics.

FDA also has authority to require warning labels for cosmetics that pose unique hazards or to ban the use of certain cosmetic ingredients. Yet developing regulations can be laborious because FDA must clear the hurdles of the federal rulemaking process. Of course, FDA has a fair amount of discretion when to pursue enforcement actions. Unfortunately, as Congress continues to slash FDA’s budget, oversight for cosmetics generally takes low priority.

Limited resources should not license FDA to cut corners when it comes to ensuring cosmetic safety. If there were ever a time to take action against problematic cosmetics, it should be now, as dozens of companies are selling hair straighteners that emit carcinogenic fumes. What is more, companies are brazen enough to withhold that fact, effectively robbing stylists and consumers of important safety information about these products.

Yet so far FDA has only issued an advisory to acknowledge that it has received numerous complaints about formaldehyde-based hair straighteners and that it is looking into the matter. In other words, take a deep breath – it is going to be a while.

FTC punts to FDA

Congress created the FTC to protect the public from companies engaged in deceptive acts such as false and misleading advertising. Once the FTC identifies a deceptive act, it decides on a case-by-case basis whether to pursue enforcement action in federal court against the unscrupulous party. Although the FTC lacks the resources to go after every violation it finds, it makes consumer safety a top priority.

Given the dangers associated with formaldehyde hair straighteners, as well as the absurd claims used to promote them, the FTC might be expected to go after the makers and marketers of these dangerous products. But according to FTC documents obtained by EWG through a Freedom of Information Act request, the FTC has decided to defer to FDA, citing a working agreement between the two agencies on how to deal with issues that fall under both of their jurisdictions. In essence, the FTC has opted to pass the buck to FDA.

Revised EPA formaldehyde safety assessment languishes

Under federal law, EPA has authority to review the safety of individual chemicals and to regulate those found to pose unreasonable health risks. The agency has spent more than a decade updating its formaldehyde assessment, even as substantial scientific evidence develops linking the chemical to cancer. The closer EPA comes to completing its review, the more pressure industry puts on Congress to impede EPA’s progress. Whenever EPA finalizes its assessment, there will likely be stronger grounds to reduce formaldehyde’s use in consumer products.

OSHA making progress but better agency coordination needed

OSHA’s mission is to ensure that employers maintain safe work environments for their employees. It oversees a critical “hazard communication” program that requires chemical manufacturers to assess products for health risks and to share that information with workers who handle their products downstream. OSHA also sets safety standards for individual chemicals that present substantial health hazards such as formaldehyde, again a known carcinogen. Companies selling hair straighteners containing formaldehyde must provide salons with a “material safety data sheet” to alert workers about the risks associated with the chemical. Salon operators must then share that information with their stylists and other employees. Salons using these products also have to conduct routine air monitoring, install proper ventilation equipment, and train employees about how to deal with risks associated with the chemical.

OSHA has been slow to investigate this matter, but it has finally taken steps to protect workers. On April 11, 2011, it issued a national alert to warn salons about the risks of using hair straighteners that release formaldehyde gas. The alert says that OSHA is investigating salons and companies that handle these products and has already issued a few citations.

These efforts are only a starting point. This issue drew attention last summer when OSHA’s partner in Oregon published a damning report about the user of formaldehyde in these products. Yet it took more than seven months for the federal OSHA to issue a nationwide health alert.

State agencies and citizens act on their own

California has taken the lead by suing the company that makes Brazilian Blowout, the most prominent hair straightener on the market, for failing to provide clear warnings about exposure to the chemical. The state plans to seek an injunction against the company to prevent it from selling the problematic formula. California, Connecticut, Oregon and Washington state have issued health advisories to alert salons and consumers about this issue. Several class action lawsuits have been filed against companies on behalf of salon workers as well.

What is EWG doing?

EWG is calling on regulators and lawmakers to take a number of policy actions. On the regulatory front EWG has filed a citizen petition with the FDA to ask for increased oversight and related rulemakings. EWG also is exploring opportunities in Congress to encourage and support legislation that would expand and sharpen regulators’ tools to protect the interests of consumers, particularly those involving health and safety. Specifically, EWG calls on Congress to:

• Amend the Fair Packaging and Labeling Act so that FDA can require ingredient listings on the labeling of professional use cosmetics.
• Pass comprehensive reform of existing cosmetics laws, similar to the 111th Congress’ Safe Cosmetics Act of 2010, H.R. 5786, to increase FDA’s authority to regulate cosmetics that could be harmful.