Chronic under-regulation
1988
In September, a subcommittee of the House Committee on Small Business holds a hearing on cosmetic safety. Newsday reports that the cosmetic industry uses over a thousand chemicals on the federal list of toxic chemicals, but that — because the FDA has no authority to test cosmetics and manufacturers are not required to report consumer complaints to the FDA — the government lacks knowledge of the health effects of these substances in cosmetics. “What the government does know is that the side effects can range from minor skin and eye irritations to tumors and nervous system damage,” Newsday writes.2
The subcommittee learns that emergency rooms treated 47,000 cosmetics-related injuries in the previous year and that the FDA is only using 2.5 percent of its budget to regulate cosmetics.
The United Commercial Workers International Union asks the subcommittee to implement legislation that will allow the FDA to test products before consumers suffer injuries.
Subcommittee Chairman Ron Wyden (D-Ore.) releases a statement that calls the FDA “no better than toothless pit bulls,” arguing that the FDA “regulates this business at the pleasure of the industry, with an unprecedented burden of proof placed on the agency to demonstrate harm.”
The FDA responds by saying that it uses the majority of its budget to regulate what it perceives to be more dangerous industries: food and drugs.3
Cosmetics industry argues that the FDA doesn’t need to have or use regulatory power over cosmetics, because the industry’s products are “extremely safe.”4
Jack Anderson, “The Government Probes Toxicity of Cosmetics,” Newsday, December 16, 1988, sec. Viewpionts, accessed August 11, 2011, nexis.com.
Dottie Enrico, The FDA Hit on Cosmetic Rules, Newsday, Sept. 16, 1988, accessed August 11, 2011, nexis.com.
Dottie Enrico, “FDA Hit on Cosmetics Rules,” Newsday,16 Sept. 1988, 49 ed., sec. 1: 49, accessed August 11, 2011, nexis.com.
1990
Following the 1988 subcommittee hearing, Wyden requests that the GAO conduct a study on the safety of cosmetics. One finding of the GAO study is that the “FDA has no plans to do safety review of toxic chemicals,” meaning that it has not committed personnel or funding to studying and ranking the safety of 884 chemicals used in cosmetics that are currently listed in the Registry of Toxic Effects of Chemical Substances.
The GAO also reports that, because the FDA has no authority to mandate participation in the voluntary registration program, the agency cannot accurately determine how many companies are participating. “In addition,” it writes, “FDA has not assessed whether industry efforts have resulted in increased reporting of data on safety testing. Because it is a voluntary program, however, FDA will never be able to require reporting from all companies.”
Newspapers across the country run stories in response to the report. One article in USA Today quotes Wyden saying, “This report very clearly contradicts the industry’s claim that self-regulation works. It’s another example of how the regulatory system has not kept up with the times – like riding around in a Model T in the Space Age.” Wyden writes in another USA Today column that, as early as 1962, President John F. Kennedy had argued for tighter restrictions on cosmetics.
The industry responds in its own column by saying that it has an unparalleled safety record. It explains that the regulation of the cosmetic industry will divert funds away from more the dangerous industries of food and drugs. “Let’s not fritter away our time and tax dollars trying to solve a non-existent problem,” the column contends.