Most people assume cosmetics and personal care products are tested for safety before being stocked on store shelves. But sadly, in truth, this is one of the least regulated industries in the U.S. This blog will shed light on the extent to which manufacturers are – or aren’t – held accountable for consumer safety.
But first I want to take a moment to clarify the types of products that I’m talking about.
For purposes of the law and understanding rules and regulations around product claims, cosmetics are defined by the government as products intended to be applied to the human body for cleansing, beautifying, promoting attractiveness or altering appearance. This includes products like moisturizers, perfumes, lipsticks, nail polish, facial makeup, shampoo, conditioner, hair color, deodorant, etc.
What’s EXCLUDED from this definition are products that cure, treat or prevent a medical condition, as these are considered drugs by the Food and Drug Administration.
You find many of these products in the same area of the store, but items like antiperspirant, diaper cream, sunscreen and dandruff shampoo are all considered over the counter medication and must follow the labeling laws of such products. While sometimes there’s overlap between cosmetics and drugs, such as with conventional antiperspirant and deodorant, only cosmetics are the focus of this blog.
What you need to know is that current federal law regulating cosmetic safety hasn’t been updated in over 80 years. This leaves the Food and Drug Administration (FDA), the agency responsible for regulating cosmetics, with no power to perform even the most basic functions to ensure the safety of an estimated >$84 billion[i] cosmetic industry.
Let’s look at what the federal code actually says about the products your family uses every single day.
The two laws pertaining to cosmetics marketed in the United States are the Federal Food, Drug, and Cosmetic Act, enforced by the FDA, and the Fair Packaging and Labeling Act (FPLA), which is enforced by the Federal Trade Commission.
Federal Food Drug and Cosmetic Act of 1938 (FDCA)
The FDCA is a law that was created to ensure consumer safety, but despite a rapidly changing chemical landscape, hasn’t been updated in 80 plus years. This law was intended to protect consumers from unsafe or deceptively labelled or packaged products … specifically food, drugs (both OTC and prescription), and cosmetics, as defined earlier. This law focuses on two types of deception: adulteration and misbranding.
Merriam-Webster online dictionary defines adulteration as:
to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element; especially: to prepare for sale by replacing more valuable with less valuable or inert ingredients.[ii]
The law refers to violation of product composition, or more specifically, ingredients, contaminants, processing, packaging, and shipping and handling conditions. Examples of violations:
- Presence of any poisonous or deleterious substance which may render it injurious to users under conditions of use prescribed in labelling, or under conditions of use that are customary;
- Consists of filthy, putrid or decomposed substance;
- Prepared or held in unsanitary conditions;
- Its container is composed of any poisonous or deleterious substance.
These are all taken directly from US Code 21 U.S. Code Subchapter VI – COSMETICS, sections § 361-364.[iii] And what works in the industry’s favor is ambiguity around the word “poisonous.”
The traditional definition of “poisonous” applies to substances that cause immediate harm; however, there’s a class of chemicals found in many everyday products that are harmful in smaller amounts, over longer periods of time. What I’m talking about are endocrine disrupting chemicals (EDCs) that mimic or interfere with hormonal function in the body. Hormones are super sensitive chemical messengers, and harm from EDCs can be inflicted slowly over time, in response to repeated exposures.
Sadly, the law hasn’t adapted to newer knowledge of these harmful substances.
The second point of the FDCA is protection for consumers against misbranding of a product. Misbranding refers to labelling and packaging violations, with the examples you see here being noted in the code:
- Labeling is false or misleading;
- Doesn’t include all required information;
- Required information isn’t adequately prominent or conspicuous;
- Container is made, formed or filled to be misleading; and
- Color additives that don’t conform to applicable regulations.
Now remember, this law also applies to food, and the FDA *can* legally mandate a recall for violations when it comes to food, but surprisingly, not when it comes to cosmetics.
I know, right?
Let’s move on …
Fair Packaging and Labelling Act of 1967 (FPLA)
The FPLA ensures that consumers have access to accurate quantitative information on product packaging, so that they can make value comparisons when it comes to purchasing decisions. It applies to measurements, net weight, serving sizes, and legibility of such information on packaging. Products packaged for non-retail distribution (eg, salon supplies, hotel amenities, free samples) are excluded from this law.
Enforced by the Federal Trade Commission, this law is about fair trade … not consumer safety.
So there you have it … the two laws that apply to personal care products that your family uses without thinking about, every.single.day.
Wait, what? Is that really it?
Yes, that’s it!
The government doesn’t have your back when it comes to cosmetics safety. There are no required pre-market approvals as with drugs. Companies take on all the responsibility for ensuring the safety of their products and any safety testing that a company does conduct isn’t required to be shared with any authorities.
Not only that … the FDA cannot even mandate a recall if a product is found to be unsafe!
And sadly, most consumers are ill-equipped to take on a big corporation, so we largely rely on consumer advocate groups and vocal bloggers to be the watchdogs for us. Yet the old adage “Let the buyer beware” is as relevant as ever, given that these groups are known to compromise more often that they’d like you to believe. This is especially true for larger non-profits who accept corporate funding in various forms to fuel their campaigns.
And yes, the marketplace has responded to the audacity of the law with products marketed directly or indirectly as safer, more natural, “greener” and “cleaner”. However with no regulation around use of these terms and companies choosing to highlight what they want you to know, you can’t really trust that marketers have your best interest in mind. They develop product, packaging, advertising, social media and public relations campaigns around what they want you to think about their products. This is why I’m known to say, “It’s all about the ingredients”, and why learning to read labels is a worthwhile endeavor.
Not sure where to begin? No worries! I’ve got your back!
Download my free guide: The Nontoxic Mama’s Ultimate Guide to Decoding Product Labels, Without Being Greenwashed or Spending Hours Scouring the Internet!
[i] https://www.statista.com/topics/1008/cosmetics-industry/
[ii] https://www.merriam-webster.com/dictionary/adulterating
[iii] https://law.justia.com/codes/us/2012/title-21/chapter-9/subchapter-vi/