PCPC Wants Cosmetics Reform Passed Before Threatened 'Blue Wave'

At the trade group's annual meeting in Palm Beach, Fla., leadership emphasized the importance of pushing cosmetics reform legislation over the finish line before November midterm elections. PCPC's support of a bipartisan proposal released by the Senate Health Committee largely hinges on preemption, the group indicated.

The Personal Care Products Council is "very hopeful" that Congress will pass cosmetics oversight reform legislation this year ahead of a possible shakeup in the House, but preemption could be the sticking point in negotiations, according to the trade group's leadership.

John Hurson, executive vice president of government affairs, noted Feb. 26 at PCPC's annual meeting in Palm Beach, Fla., that PCPC has been "doggedly" pursuing federal legislation for nearly a decade to modernize the cosmetics regulatory framework.

Speaking alongside other senior staff members during the group's "Washington Report," Hurson stressed that 2018 represents a prime opportunity for reform legislation, at least until midterm elections in November when a widely speculated "blue wave" could impact Congress.

"If anybody's been watching the news at all, you realize that we have a Congress that is not going to be the same Congress after November. It's going to look very different. I'm not going to predict what's going to happen, but it's very likely that you could see the Democrats at least take back the House, which completely changes the dynamic of our legislation," he said.

"That's why we want to get it done this year, because we have at least a relatively business-friendly leadership in Congress, and we now have bipartisan support for something that we can support once we get preemption right in that piece of legislation, which is a big 'if,'" he added.

Hurson was referring specifically to a draft discussion bill released Feb. 23 by the Senate Health, Education, Labor and Pensions Committee – the Modernization of Cosmetics Regulation Act of 2018 – which lays out a comprehensive framework for tighter FDA oversight and increased manufacturer responsibilities. (Also see "Senate Health Committee Releases Cosmetics Reform Discussion Draft" - HBW Insight, 23 Feb, 2018.)

It compares closely to the bipartisan Personal Care Products Safety Act, S. 1113, while also incorporating aspects of the FDA Cosmetic Safety and Modernization Act, S. 2003, introduced in October 2017 by Sen. Orrin Hatch, R-Utah.

Hurson noted that the Senate Health Committee plans to mark up cosmetics legislation in mid-April, adding, "We're not exactly sure if it's going to be attached to something else." The committee has indicated possible interest in folding cosmetics provisions into OTC monograph reform legislation. (Also see "Senate Health Committee To Move On Cosmetics; News In Brief" - HBW Insight, 11 Feb, 2018.)

PCPC had more than 300 state bills on its radar last year, underscoring the importance of a strong preemption component in federal reform legislation.

Whatever the committee's intentions, "we're going to be asking our CEOs to do a special fly-in to Washington and go visit the leadership in Congress," Hurson said.

That will mean, at minimum, dropping into the offices of Sen. Lamar Alexander, R-Tenn., who chairs the Senate Health Committee, and Ranking Member Patty Murray, D-Wash. According to Hurson, the senators' staff worked "very closely" with PCPC's people on the cosmetics discussion draft language, which is open for stakeholder comment through March 15.

While optimistic about the prospects for cosmetics legislation this year, Hurson acknowledged that there are bound to be challenges.

"It's not impossible, despite what you see on the news programs about dysfunctional Washington. They actually do pass things," he said, referring attendees back to the Microbead Free Waters Act, which industry managed to drive through Congress "in record time" in late 2015. (Also see "In Brief: Federal Microbeads Law On The Books; FDA Eyes Tanning-Bed Restrictions; More" - HBW Insight, 2 Jan, 2016.)

He continued, "It can happen, and we are very, very hopeful that we'll be able to do that."

If efforts fail before the November elections, PCPC may have to adapt its strategy and focus on enhancing relations with Rep. Frank Pallone, D-N.J., the current ranking member who's in line to assume chairmanship of the Energy and Commerce Committee if Democrats take control of the House.

Pallone has established himself as an increasingly outspoken critic of current cosmetics regulations and the authority afforded to FDA under existing law. He's repeatedly promised to revive legislation he circulated in late 2016, which closely resembled the proposed PCPSA in the Senate. (Also see "Rep. Pallone Has Cosmetics Concerns, Possibly Coming To A Storefront Near You" - HBW Insight, 2 Feb, 2018.)

Preemption, The Big 'If'

Hurson suggested in his remarks that PCPC has scored a major accomplishment in achieving relative industry unity behind cosmetics reform legislation, a significant challenge given the numerous competing interests across PCPC member companies.

The trade group also has indicated a commitment to working with other industry segments. The small business community represented by the Independent Cosmetic Manufacturers and Distributors has been less receptive to date to the large-scale reforms proposed in the PCPSA. (Also see "ICMAD Beefs Up Lobbying To Deter 'Wrong Decision' In Congress" - HBW Insight, 8 Feb, 2018.)

ICMAD is reviewing the Senate Health Committee's discussion draft and plans to comment by the March deadline, according to a Feb. 25 statement from the group.

It notes that "while oversight of cosmetics by the FDA should provide reassurance to consumers of the safety of cosmetics, it must also give businesses, of all sizes, the guidance and clarity they need to succeed in the cosmetic marketplace and a strong, level foundation for future innovation."

Further, ICMAD underscores its support for "a clear and uniform national standard" for cosmetics requirements, including safe ingredient use, at a time when companies face a growing patchwork of burdensome state- and local-level regulations.

Therein lies the appeal of preemption. Notably, the Microbead Free Waters Act answered industry concerns by prohibiting state and local laws that conflict with plastic microbead restrictions established at the federal level.

The Senate Health discussion draft includes a placeholder for preemption, with a note that the committee sees national uniformity as an important cosmetics reform component, while also recognizing that state-level work to date "warrants consideration."

A draft bill in the House that has received little attention compared with the Senate proposals, but continues to have ICMAD's full backing – the Cosmetic Modernization Amendments of 2017, H.R. 575 – would bar states from imposing new requirements on cosmetics companies related to labeling or ingredient use, among other areas, even voiding existing programs such as California's Prop 65 as it applies to personal care. (Also see "House Cosmetics Bill Reintroduced; ICMAD Optimistic In New Political Climate" - HBW Insight, 13 Jan, 2017.)

Achieving preemption on that scale is almost certainly a long shot, though it undoubtedly would be welcomed gleefully by industry stakeholders of all stripes. PCPC execs said the group had more than 300 state bills on its radar last year.

It remains to be seen how flexible industry is in its negotiations concerning the preemption issue, and how that bears on the advancement of reform legislation.