ICMAD Attorney: ‘Bad’ Cosmetics Bill Won’t Get Through Senate, But Next Session Is Less Certain
Executive Summary
According to Locke Lord attorney Sharon Blinkoff, general counsel at ICMAD, Senate Health Committee Chair Lamar Alexander is inclined to block cosmetics reform legislation that lacks express industry support. She noted, however, that the Republican senator for Tennessee is retiring at the end of this term.
The Independent Cosmetic Manufacturers and Distributors is confident for now that cosmetics reform legislation will not advance in the Senate without broad industry backing, but visibility beyond 2020 is limited, the organization says.
Leading off ICMAD’s FDA Regulatory Workshop May 9 in New York, Corporate Secretary and General Counsel Sharon Blinkoff restated the group’s position that cosmetics bills under consideration in the 116th Congress – similar to predecessors in previous sessions – exceed what is necessary to boost FDA oversight and reassure consumers as to the safety of cosmetic products.
“Right now, because of legislative work that ICMAD did, as well as our partner PBA [Professional Beauty Association], we convinced Senator Alexander that, No. 1, the FDA has plenty of authority, and he doesn’t want to pass any legislation through his committee in the Senate until the industry says they want this bill,” said Blinkoff, senior counsel at Locke Lord LLP.
She noted, however, that Sen. Lamar Alexander, R-Tenn., chair of the Senate Health, Education, Labor and Pensions Committee, is retiring at the end of this term.
“So there is movement to try to get something done this year,” Blinkoff said. The next congressional meeting, particularly if Democrats are able to flip the Senate, could be a very different situation.
“But if it’s a bad bill, we really can’t support it. We really need to fight hard,” the attorney said.
"You tell me how we have a color today with zero tolerance for lead,” Blinkoff said of California's proposed Toxic Free Cosmetics Act, another example in ICMAD's view of why preemptive federal legislation is needed.
ICMAD, which represents predominantly small and medium-sized enterprises as well as some larger members such as Mary Kay Inc., continues to harbor concerns about legislative proposals to modernize the regulatory framework for cosmetics in the US.
The group supports making FDA’s Voluntary Cosmetic Registration Program mandatory for all companies, which would require facility registrations and product/ingredient filings.
ICMAD also backs serious adverse event reporting and the establishment of formal good manufacturing practices.
Such provisions were included in the Cosmetic Modernization Amendments of 2017, a proposal from former Rep. Pete Sessions, R-Texas, which ICMAD championed in the previous congressional session, but which failed to gain traction.
Sessions lost his seat in the November 2018 midterms.
ICMAD is less cozy with the idea of giving FDA mandatory recall authority, a power the agency does not wield over the OTC drug industry, which provides the most comfortable comparison in ICMAD’s view for what’s appropriate in the cosmetics sector.
The group maintains that cosmetics should not be regulated like foods. (Also see "ICMAD Responds To Senate Proposal: Cosmetics Should Not Be Regulated Like Foods" - HBW Insight, 23 Mar, 2018.)
According to ICMAD, that would be the effect of the bipartisan Personal Care Products Safety Act, S. 726, as well as a draft bill being developed by House Energy and Commerce Committee Chair Frank Pallone, D-N.J., and Rep. John Shimkus, R-Ill. (Also see "Rep. Pallone’s Discussion Draft For Cosmetics Reform Closely Mirrors Reintroduced Feinstein/Collins Bill" - HBW Insight, 8 Mar, 2019.)
User fees remain a topic of concern for ICMAD, and preemption is still its foremost priority.
Blinkoff noted a couple of the most aggressive state legislative proposals to rear up of late, including one tucked into New York’s 2019-2020 executive budget that she characterized as “Prop 65 on steroids.” (Also see "New York's Prop 65-Like Proposal Dropped From Budget, But Talks Continue" - HBW Insight, 15 Apr, 2019.)
“We were able to get it out of the budget and it looks like it’s going to die a reasonable death,” she said.
The attorney also highlighted a proposed bill in California that industry managed to squash in April. That one would have banned the sale of cosmetics containing formaldehyde releasers, selected parabens or any amount of lead, which is commonly found in the mineral pigments used to formulate color cosmetics. (Also see "California’s Proposed Toxic Free Cosmetics Act Put On Ice After Industry Lobbying Blitz" - HBW Insight, 10 Apr, 2019.)
“You tell me how we have a color today with zero tolerance for lead,” Blinkoff asked attendees.
She added, “Until we get preemptive federal legislation, we’re going to have to keep dealing with these bills.” (Also see "ICMAD: Federal Cosmetics Legislation Without National Uniformity Not In Industry’s Interest" - HBW Insight, 10 Apr, 2019.)