House Bill Seeks Asbestos Warnings On Unverified Kids' Cosmetics With Talc

A House bill proposes requiring companies to demonstrate that talc-containing children’s cosmetic products are free from asbestos or are labeled with a warning about possible cancer risks, advising against kids' use.

Introduced Feb. 7 by Rep. Debbie Dingell, D-MI, the Children’s Product Warning Label Act of 2018, H.R. 4964, follows reports of asbestos-contaminated makeup from popular girls' retailers that received national media attention and amplified calls for tighter regulatory oversight of cosmetics.

According to a same-day release from Dingell, the bill would give parents “peace of mind in knowing that the cosmetics they buy for their children are safe.”

The congresswoman suggests that even small levels of asbestos can cause cancer "many years after exposure," an issue currently being tried in the courts with respect to powder-based personal-care products. (Also see "J&J’s Talc Winning Streak Continues With Calif. Mesothelioma Verdict" - HBW Insight, 24 Nov, 2017.)

Under H.R. 4964, cosmetics marketers would be required to attest in writing to FDA that talc included in children’s cosmetic products is sourced from asbestos-free mines and have products tested via transmission electron microscopy analysis to prove that asbestos is not present as a contaminant.

Some of the bill's specifics may have to be revised or clarified if it advances. For example, Dingell proposes that labs commissioned to perform the testing must be accredited by the National Bureau of Standards, which was renamed the National Institute of Standards and Technology in 1988.

Further, H.R. 4964 defines transmission electron microscopy analysis as the method used by laboratories in line with Environmental Protection Agency regulations for asbestos-containing materials in schools, a dubious fit, or "any successor regulations."

Companies that do not fulfil those requirements would be obligated to label talc-containing kids' products with a caution statement: “WARNING: Talc has not been evaluated for asbestos contamination. Asbestos at any level is known to the FDA to cause cancer, including lung cancer and mesothelioma and may be present in this product. This product is not suitable for use by children.”

Otherwise, their products would be misbranded under FDA regulations.

The Environmental Working Group applauded the bill’s introduction. Cosmetics law fellow Emily Griffith says “it’s simply outrageous that cosmetics can contain asbestos and still be legal.”

In fact, asbestos-tainted cosmetics are not legal, insofar as cosmetic products and their ingredients must be determined safe by manufacturers before they are put on the market, containing no "deleterious" substances that could lead to user harm, and FDA expressly notes on its website that it "considers it unacceptable for cosmetic talc to be contaminated with asbestos."

However, federal law does not require cosmetics to be FDA-cleared as safe on a premarket basis. The agency's postmarket analysis of cosmetic product samples and raw talc materials has raised no clear red flags regarding asbestos threats, but FDA notes that limited supplier participation in its survey work has precluded firm conclusions as to the overall industry picture. (Also see "FDA: No Asbestos Found In Talc Products Sampled, But Results Limited" - HBW Insight, 19 Mar, 2012.)

Both Justice and Claire's halted sales of powder makeup products last year after reports surfaced alleging asbestos contamination. The claims were based on testing performed by a North Carolina lab, Scientific Analytical Institute, on behalf of an ABC news affiliate and a concerned mom (who also is a clerk at a personal injury law firm).  (Also see "Claire's Scare Revives Concerns About Asbestos-Tainted Kids' Cosmetics" - HBW Insight, 3 Jan, 2018.)

The retailers subsequently announced results from their own independent lab-commissioned testing, which purportedly showed their products to be asbestos-free.However, Justice recently notified customers of a recall initiated for eight of its Just Shine makeup products, citing results from a second round of testing that identified trace amounts of asbestos. The voluntary action covers around 3,500 products sold during March-June 2017

The retailer says it has ended its relationship with the vendor that supplied the products and continues to cooperate with FDA and Health Canada "to make sure as much product is returned to us as soon as possible." Justice is not aware of any adverse events caused by the cosmetics at issue.

Meanwhile, Claire's continues to investigate asbestos allegations against its products in cooperation with FDA and Health Canada, but to date has maintained the safety of its talc-based products. In January the retailer said it planned to share its third-party test results with the agencies but hadn't done so yet.Energy & Commerce Hearing On Horizon?

Dingell is urging Congress to make her bill a priority this year. The legislator serves on the House Energy and Commerce Committee, where her bill now resides, and is co-chair of the bipartisan Cancer Prevention Caucus.

Rep. Frank Pallone, D-NJ, ranking member of the Energy and Commerce Committee, has established himself as a vocal proponent of tighter cosmetics regulations and has taken particular note of the recent asbestos scares. (Also see "Rep. Pallone Has Cosmetics Concerns, Possibly Coming To A Storefront Near You" - HBW Insight, 2 Feb, 2018.)

The congressman is pushing for a hearing on cosmetics safety issues, among other moves aimed at raising awareness in Congress and potentially advancing legislation to modernize the cosmetics regulatory framework.

Dingell similarly sees a need for a regulatory update that provides FDA with increased funding via cosmetics user fees and establishes a system for agency review of potentially hazardous ingredients.

“But if Congress is unwilling to consider this approach, we should start taking common sense steps to protect our children by passing my legislation to ensure consumers have all the facts about the products they purchase,” she says.

User fees and FDA ingredient review are components of the proposed Personal Care Products Safety Act, S. 1113, sponsored by Sens. Dianne Feinstein, D-CA and Susan Collins, R-ME.

The senators published an op-ed in the Journal of the American Medical Association’s Internal Medicine Feb. 5, imploring Congress to act and create a modernized cosmetics regulatory regime.

In the piece, Feinstein and Collins reference the issue of asbestos in children's cosmetics and FDA's current lack of mandatory recall authority. The PCPSA also would authorize FDA to order recalls rather than having to take action through federal courts or rely on voluntary manufacturer recalls.

“If the [retailers] had not taken this step voluntarily, the FDA lacks the power to compel them to act,” the senators wrote.