Massachusetts To Be Next Cosmetics Battleground? Hearing In September

The Massachusetts state legislature will hold a hearing Sept. 13 to consider setting its own regulations increasing oversight of the cosmetics industry.

In what could be the biggest cosmetics showdown at the state level since a hearing last year in Colorado, Massachusetts’ Joint Committee on Public Health will review a bill that would mandate disclosure of cosmetic ingredients the state deems linked to cancer, reproductive or developmental toxicity, and would require warning labels on cosmetics sold in the state containing those ingredients.

H. 2361, the “Massachusetts Safe Cosmetics Act,” was introduced Jan. 20 by state House Minority Leader Bradley H. Jones and currently has 10 co-sponsors. The bill closely mirrors California’s successful cosmetics legislation in its approach.

It will be considered by the committee along with 21 other bills during the hearing on air quality, hazardous substances and related environmental health policies.

Under the “Massachusetts Safe Cosmetics Act,” which closely mirrors legislation passed in California, manufacturers would have to disclose their use of chemicals of concern and potentially could be investigated and required to submit ingredient safety data.

With federal legislation aimed at increasing government oversight of cosmetics stalled, Massachusetts is among states that are considering taking matters in their own hands.

Colorado was the last state to seriously consider cosmetics-specific legislation with the "Colorado Safe Personal Care Products Act," which would have prohibited the sale of personal-care products containing chemicals identified as possibly carcinogenic or toxic to the reproduction system (Also see "Bill Could "End Personal Care" In Colorado, Compel Nationwide Reformulation" - HBW Insight, 1 Mar, 2010.).

Industry suggested the bill would have nearly eliminated all personal-care products in the state, and the bill ultimately was dismissed by a 7-4 vote by Colorado's House Judiciary Committee (“Colorado Legislature Votes To Dismiss ‘Most Critical’ Safe Cosmetics Bill,” “The Rose Sheet” March 8, 2010).

Massachusetts’ bill is not as far-reaching as the one proposed in Colorado, but bears resemblance to California’s “Safe Drinking Water and Toxic Enforcement Act of 1986,” better known as Proposition 65.

Prop 65 requires manufacturers to alert consumers to the presence of chemicals with suspected carcinogenic or reproductive toxicity risks, while the "Safe Cosmetics Act of 2005” obligates cosmetics manufacturers doing business in California to report to the department of health the use of chemicals suspected as hazardous and to supply relevant health effects data.

The Personal Care Products Council is tracking the legislation and monitoring activity in Massachusetts, but “it is too early to say if we are attending” the hearing, according to a spokeswoman for the trade group.

In March, the trade group said it was keeping an eye on bills in nearly 30 states designed to impose restrictions on the use of targeted chemicals in consumer products (Also see "Council Focusing On State Environmental & Children's Safety Bills In 2011" - HBW Insight, 21 Mar, 2011.).

The Council has argued in the past that FDA regulations should supersede states and has proposed enhancements to FDA’s oversight system for cosmetics that it believes are both responsible and realistic (Also see "Council Proposes "Modernized" FDA Oversight Of Personal-Care Industry" - HBW Insight, 19 Jul, 2010.).

John Bailey, the Council’s former chief scientist, has noted the burdens levied on industry when federal and state cosmetics regulations are not aligned. “The states have been very active and trying to sort of invent their own systems, and it really should happen at the federal level and not the state level,” he said (Also see "Council’s Science Chief Bailey Reflects On Career “Being True To The Science”" - HBW Insight, 6 Jun, 2011.).

Chemical ID Lists Required

H. 2361 would put the onus on manufacturers to provide the state with a list of cosmetic products they sell in the state that contain a chemical identified as causing cancer, reproductive or developmental toxicity.

Manufacturers would have one year from the bill’s passage to comply.

A provision in the bill would also allow for the state’s Bureau of Environmental Health to investigate manufacturers that sell products containing said chemicals and potentially require them to submit safety studies regarding the ingredients in question, ingredient concentrations and company information.

Chemicals of concern would be identified by “authoritative bodies” including the National Toxicology Program, the Interagency for Research on Cancer and the Environmental Protection Agency, as well as “any federal, state or private agency or formally organized program or group pursuant to the General Laws as being authoritative for the purpose of identifying chemicals that cause cancer, or reproductive or developmental toxicity.”

If NGOs are recognized as “formally organized programs” under the bill, groups like the Environmental Working Group and other members of the Campaign for Safe Cosmetics – whom Bailey has rebuked in the past for unduly alarming the public with assertions based on bad science – could influence the cosmetics marketplace in accordance with their objectives.

Taking a page from California’s Prop 65, the bill would require warning labels on products that contain known carcinogens and chemicals identified as causing reproductive or developmental toxicity.

The bill does allow for exemptions for cosmetic manufacturers who have fewer than 100 employees and/or annual sales of less than $5 million.

Compared with bills in other states, one big difference in the Massachusetts bill is that it calls for the formation of a Commission on Safe Cosmetics to “study and report on the implementation” of the legislation.

The Commission would be largely made up of government officials, legislators and government-appointed scientists and businesses.

At least one of the appointed businesses must be a signer of the Campaign for Safe Cosmetics’ Compact for Safe Cosmetics, which closed in June this year to new signers as the Campaign phases out the program for a new initiative under development (Also see "Campaign Phases Out Safe Cosmetics Compact; Fresh Program In The Works" - HBW Insight, 7 Feb, 2011.).

CIR As Authority

In addition to reviewing H. 2361 during the hearing, the committee will consider a bill that would ensure manufacturers follow Cosmetic Ingredient Review Expert Panel recommendations regarding the safe use of cosmetic ingredients.

The bill, H. 1513, introduced by Democrat Kathi-Anne Reinstein Jan. 19, would require manufacturers to report to the state health department if they manufacture, distribute or sell cosmetic products in the state that include any ingredients the CIR panel has deemed unsafe at any level.

A product containing any of those ingredients could be deemed adulterated and/or misbranded, and its manufacturer could be subject to enforcement action.

The Council has supported similar bills in Massachusetts in the past .

By Lauren Nardella