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REGULATING COSMETICS IN THE 21ST CENTURY TO ENHANCE INNOVATION

January 6, 2021
January 6, 2021
Brandon Mowinkle via Unsplash

The Independent Beauty Association supports sensible regulatory reform. On January 3, 2021, the 117th Congress was sworn in. The House of Representatives, the most diverse in history, includes some new faces and more women. Why does the makeup of the 117th Congress matter to the cosmetics industry?

Many times over the past several years, legislation has been introduced in the House and the Senate that would modernize the Food and Drug Administration’s oversight of the cosmetics industry, something that the Independent Beauty Association (IBA) has worked hard to help craft and agrees is long overdue. Many of our industry’s most successful entrepreneurs weren’t even alive when the cosmetics oversight laws were written in 1938. Today, the independent beauty industry is a tremendous source of innovation and energy for the industry.

So, reform of the laws governing the cosmetics industry should be a breeze, right? Not necessarily.

Unfortunately, proposed cosmetic regulations being considered in the U.S. House Committee led by Frank Pallone (D-NJ) would overregulate and punish an industry that has a remarkable safety record and has been responsible for innovation in all facets of the industry. It would also disproportionately impact the industry’s entrepreneurs, many of whom make up IBA’s membership.

Many brands that are now household names started out in the founder’s garage. This demonstrates the power of innovation in the cosmetics industry. The legislation that is being proposed would unnecessarily put all of this at risk and disproportionally impact many of the smaller, independent companies that make up the heart of the industry, companies in many cases started by women and minorities.

It doesn’t have to be this way. There is a way forward that would allow the industry to continue to innovate and create jobs, continue to ensure consumer safety, and give the FDA the tools to regulate the industry. We can do it all.

The questions we should be asking is: Do we want our industry to move into the 21st century or do we want to keep looking in the rearview mirror?Researchers in the cosmetics industry and not the drug industry introduced the use of sunscreens in non-beach products, addressing the concern that an epidemic of skin cancer would ensue in this country. The enforcement tools proposed in these bills are so draconian, and the means to challenge so limited, the threat of action by the FDA will probably be sufficient to discourage the kind of challenges which sometimes need to be made to get the best public outcome, including SPF in your daily lotion.

Many innovative and disruptive advances that have been made by smaller companies may not happen for another reason—that is, the extraordinarily high user fees that are currently proposed in the Pallone bill, resulting in smaller companies paying a disproportionate share.

Between the user fees and the enhanced enforcement tools, IBA believes new barriers to entry will discourage new entrants who tend to be the innovators and disruptors. Why enter a new field which imposes high fees on small companies with a regulatory body that has overarching authority? Don’t believe us; just ask our members, who overwhelmingly oppose both provisions.

Let’s address another of the main tenets of the proposed legislation, consumer safety. These bills are based upon the food safety amendments that were designed to address significant health risks resulting from food-borne illnesses, which have caused hundreds of thousands of illnesses each year.

The cosmetics industry by contrast has an excellent safety record. Most of the safety issues that have arisen over the last few years have been dealt with effectively and efficiently by the FDA. As one senator noted at a Senate HELP (Health, Education, Labor, and Pensions) Committee meeting on cosmetics, “The FDA has significant enforcement authority over the industry.” When real safety issues have been presented, the FDA has worked quickly to address these issues through the tools that are currently within its authority. For example, the Brazilian blowout problems were addressed very quickly, and the FDA took a number of actions against asbestos and the “bad actor” companies involved. The FDA reported all of these actions on its website including the studies it conducted on the safety of parabens in cosmetics. The FDA has, over the years, proved a competent and diligent regulator.

Can we as an industry always provide more confidence to consumers about safety? The answer is YES, and that is why IBA and its sister organizations support legislation that would do just that instead of supporting a false narrative about the industry.

State legislatures are busy passing laws to regulate cosmetics and cosmetic ingredients, and they are all inconsistent. For example, with the legalization of CBD from hemp, we have seen significant state activity, some of which ignores the science and the positions taken by the FDA. Passage of any cosmetic bill without strong preemption can result in 50 different state laws in the area of cosmetic regulation. It may be fine for the big guys with big regulatory operations, but for the little guys, it may make selling products nationally a thing of the past.

As noted, the bills all call for significant annual industry user fees, in some cases as much as $46 million annually for FDA. IBA is not opposed to sensible user fees, but, for example, the legislation proposes to tax the industry to conduct a review of ingredients whose safety has already been independently established by numerous different accredited bodies, including the EU. Let’s instead use the funding from user fees to review NEW ingredients and direct the funds to scientific advancement. This would be beneficial for all stakeholders, including, most importantly, consumers.

IBA is hopeful that the new Congress will look at these issues as it considers cosmetics reform legislation. We look forward to working with members of the House and Senate in crafting new, forward-thinking legislation that supports innovation and encourages entrepreneurial endeavors in an industry where women and minorities have been able to succeed at every level.

The Independent Beauty Association stands ready to work with the new Congress and our partners in the industry to craft sensible cosmetics reform and legislation that is good for consumers and for the industry.

Cosmetic industry stakeholders should seriously question the need for excessive user fees when no user fees were levied on the dietary supplement industry, an industry that has, unlike the cosmetic industry, experienced annually significant numbers of serious adverse events each year. Perhaps the purpose for collecting these large fees from the cosmetics industry is to support other programs, namely dietary supplements and foods.

The additional requirements proposed in these bills will not enhance the FDA’s product or facility information or result in enhanced product safety. It isn’t just more cost that will be loaded onto these products with no safety benefit. With the burden borne by the most innovative and entrepreneurial, the loss will be the reduction of those elements, which will be to the detriment of the consumer who will pay more and have fewer choices.

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