The Dark Side of the Beauty Boom

I’ve been noticing something lately and maybe you have too: Young women are wearing a lot of makeup these days. Certainly more than I do today (none)—but also more than I did when I actually wore makeup, in my 20s. Millennials buy more cosmetics than any demographic group, fueled by a combination of celebrities-turned-makeup-moguls like Kim Kardashian West and Rihanna, thousands of hours of YouTube makeup tutorials, and millions of Instagram posts. And that trend is accelerating. According to market research firm the NPD Group, millennials are buying almost 25 percent more cosmetics today than they did even two years ago.

This generation’s makeup obsession has led to big gains for beauty companies and retailers at a time when the retail industry is otherwise flailing. With clothing retailers shutting shops as quickly as possible, thanks to a combination of clothing sales increasingly shifting online and out-of-date commercial real estate terms driving companies bankrupt, beauty stores like Ulta are opening 100 new stores a year. Sephora’s revenue has doubled since 2011.

But while millennials might be solving some problems—keeping beauty brands afloat, in Rihanna’s case (with Fenty) solving the problem of lack of representation of women of color in the beauty world, embracing a more intersectional and body-positive version of beauty than past generations—they may unknowingly be putting themselves in danger. To wit, the regulations governing the health and safety of cosmetics in this country haven’t been updated since the late 1930s and the beauty industry currently regulates itself. That makes it all the more important to pay attention to legislation currently making its way through the Senate. Senators Diane Feinstein and Susan Collins reintroduced a proposed update to the law governing cosmetics earlier this year, only to be stymied by a similar but less restrictive proposal from Senator Orrin Hatch earlier this month. The two bills will head to committee with a final draft expected before the year is out.

Most health advocates see the Feinstein bill as being stricter than the Hatch bill, but all agree that neither bill goes far enough. Because the cosmetic portions of the Federal Food, Drug, and Cosmetic Act have not been meaningfully updated in 80 years, a time period during which many thousands of new chemicals have been introduced to the personal care and beauty markets. As it currently stands, cosmetic manufacturers have to assure the government that their products are safe and then they can sell them to consumers. That’s it. When I asked Janet Nudelman, policy director for Breast Cancer Prevention Partners, which runs the Campaign for Safe Cosmetics, what the approval process is for beauty products before they hit the market, she laughed. “Oh that’s easy: There isn’t one,” she said.

As a result, there are products currently on shelves that contain known carcinogens: Black carbon is a common ingredient in eyeliner, for example, and Nudelman’s team found it in several L’Oreal products in a recent study. Toluene, a common ingredient in nail polish, has been linked to a variety of reproductive health issues, including increased risk of miscarriage, but is still present in the vast majority of products on the market. Graham Peaslee, a researcher at University of Notre Dame recently began discovering high levels of fluorinated chemicals (related to the so-called “Teflon chemical” linked to several cancer cases in last year’s high-profile class-action lawsuit against DuPont) in beauty products. “The cosmetic and personal care companies have been starting to use fluorinated chemicals now too, and since these products are completely unregulated that’s a concern,” Peaslee says. “We are testing all the standard cosmetics, including mascaras, eyeliners, shadows, blush, foundation, cover-ups, lip products etc. There is significant exposure potential in these products, which is scary given that we already know the Teflon chemical (PFOA) is linked to cancer and we’re finding that its replacement chemicals behave similarly, except they tend to impact the brain.”

Industry spokespeople bristle at the insinuation that their industry is self-regulated. The Food and Drug Administration (FDA), after all, has a seat at the Cosmetics Industry Review (CIR), an industry-funded and governed panel that assesses the safety of cosmetic ingredients. Most companies’ safety assurances to the government are based on CIR safety assessments. When I asked the FDA about it, spokesperson Theresa Eisenman emphasized the fact that the agency’s position at the CIR is a non-voting one.

Once products are on the market, the FDA has no power to order a recall should a product harm consumers. When Brazilian Blowout treatments were found to release harmful levels of formaldehyde, a known carcinogen, for example, the FDA could fine the manufacturers and send strongly worded letters asking them to reformulate, but it could not force the removal of the product from the market. That matters, because after the companies claimed to have reformulated, filling salons with treatments labeled “formaldehyde-free,” investigators from the Occupational Safety and Health Administration (OSHA) visited several salons and found that the products still emitted unsafe levels of formaldehyde, putting customers and especially salon workers at a health risk.

Feinstein’s bill would give the FDA recall power and the option to audit a company’s safety assurances. It would also require the FDA to do their own, independent evaluation of at least five chemicals each year. The big news there is the leeway the legislation gives to the FDA to tackle a group of chemicals (phthalates, example) rather than one at a time. Still, the bill doesn’t set up a pre-market approval process, nor does it back away from the CIR as a legitimate source of safety assurances.

For millennials eager to spend some portion of their next paycheck restocking their beauty bag, then, it’s important to pay attention both to the labels on the products they’re buying, and to this legislation making its way through Congress. The key issues to look out for as both the Feinstein and Hatch bills move through committee (track it here) are the funding mechanism (Hatch requires appropriations, Feinstein sets up a fee on manufacturers to fund oversight), recall power, safety evaluations (Feinstein requires at least five a year, Hatch sets no minimum), and preemption. That last one is the big industry bugaboo.

Currently, several states have much stricter cosmetic laws than the federal government (including California and Maine, which is why Feinstein and Collins have grandfathered in existing state laws). The beauty industry would like to see a more modern federal law that’s less strict than these state laws become the law of the land and eliminate stricter state rules. “Under Hatch, preemption attaches as soon as the FDA puts an ingredient on a list for potential future review,” explains Scott Faber of the Environmental Working Group. “There is no provision in Hatch that requires FDA or a third party to ever actually review that ingredient. That means states could be preempted long before the federal government takes action – or whether the federal government ever takes any action at all. This creates a complete regulatory void.”

Faber adds that while Hatch does grandfather in some existing laws, it would not protect future regulations under state programs like California’s Proposition 65 (a stringent chemical regulation in California that requires that any product containing any of a list of potentially harmful ingredients carry a warning label).

Miriam Lawrence got involved in the push for safe cosmetics when her 10-year-old daughter Eliana lost all of her hair after using Wen cleansing conditioner (after thousands of similar cases, a lot of bad press, FDA warnings and a class-action lawsuit, Wen reformulated its products and is now busily trying to salvage its reputation).  She says she wishes the Feinstein-Collins bill were stronger, but thinks it provides the most improvements in a bill that’s still actually passable. She says Hatch’s bill “does nothing to improve the safety of cosmetics, and in some ways even weakens our laws by pre-empting states’ rights to legislate when the federal level fails to protect consumers.”

The recall question is also open-ended in the Hatch bill. Nudelman says his approach could work. “It treats the definition of ‘adulterated’ similarly to how it’s treated in food,” she explains. “So it would allow the FDA to identify a product as being adulterated regardless of whether it can identify the problematic ingredient, which is important because like with Wen they couldn’t pinpoint which ingredient was causing the problem, which tied their hands.”

This shift would give the FDA more legal tools to encourage a company to recall and reformulate its products, but still falls short of giving the agency total recall power. That’s a problem for Lawrence. When she met with Senator Hatch and his wife in their Virginia home this July, Lawrence said the Senator didn’t seem to understand the recall issue. “Senator Hatch didn’t even believe me that the FDA has no authority to recall personal care products!” she says.

Ultimately, consumer advocates are worried about any legislation making its way through this particular Congress which has made its dislike of regulation clear. “I think trying to pass cosmetics legislation through this Congress is a terrible idea,” says Stacy Malkan, who started the Campaign for Safe Cosmetics more than a decade ago and authored the book Not Just a Pretty Face. “Look what happened with TSCA [Toxic Substances Control Act] reform last year: the bill was written by the chemical industry in the first place, was eventually opposed by most environmental groups, and now the Trump EPA has put a chemical industry lobbyist in charge of administering it. The chemical/beauty industries want these new laws because they give the aura of the government doing something, while taking away state rights to regulate, and requiring no meaningful changes to products. The bill is already weak to begin with and is sure to get worse as it makes its way through the Hatch negotiations.”

As we wait to see what becomes of the bill this year, perhaps we could convince Kim Kardashian West to kick off a natural beauty trend?