Bill Could "End Personal Care" In Colorado, Compel Nationwide Reformulation

Beginning in September, manufacturers could be prohibited from selling certain cosmetics in Colorado under a bill that has even more significant implications for manufacturers than California's safe cosmetics law.

The "Colorado Safe Personal Care Products Act," HB10-1248, is designed to weed out chemicals of concern - those suspected of causing cancer or reproductive toxicity by any one of the cited federal agencies - from personal-care products sold in the state.

The bill would forbid companies to market products that contain such ingredients and place enforcement largely in the hands of private citizens, who would be free to file suit and recoup expenses. It also proposes fines to be levied on manufacturers found in violation.

Supporters of the legislation include the Women's Lobby of Colorado and Lily Organics, among other companies and public/environmental watchdogs.

While similar bills have cropped up across the country, taking their cues from chemicals regulation in California and Europe, the "most critical" piece of state legislation currently under consideration is "the one in Colorado," said the Personal Care Product Council's John Hurson, executive VP of government affairs, during a Feb. 25 session of the group's annual meeting in Boca Raton, Fla.

According to Hurson, the Colorado bill "essentially would end personal-care products in the state of Colorado."

He noted Council representatives planned to attend a hearing on the bill March 1.

Inspired By California

The "Colorado Safe Personal Care Products Act" was introduced by democratic Senator Betty Boyd and Representative Dianne Primavera in the spirit of the "California Safe Cosmetics Act of 2005," which went into effect in January 2007.

However, the Colorado bill would take safe cosmetics regulation to a new and potentially more exacting level.

California law requires manufacturers to provide the state health department with "a list of its cosmetic products that ... are sold in the state and contain any ingredient that is a chemical identified as causing cancer or reproductive toxicity."

The health department is authorized to investigate products that contain chemicals of concern, and as part of that investigation it can "require manufacturers of products subject to investigation to submit relevant health effects data and studies."

The California law focuses on the possible impact of toxic cosmetic chemicals on "beauty-care workers, including cosmetologists and manicurists," noting that those professions are "dominated by women and minorities, particularly from Southeast Asia."

If an ingredient in a cosmetic product is found to be "potentially toxic," the Division of Occupational Safety and Health in the Department of Industrial Relations is authorized to develop, as it deems necessary, proposed standards "to protect the health of an employee who has regular exposure to the hazard for the period of his or her working life."

Further enforcement action is left to the discretion of the Attorney General or FDA.

The Colorado bill, on the other hand, outright "prohibits a manufacturer from knowingly selling, offering for sale, or distributing for sale or use in Colorado ... any personal-care product that contains a chemical identified as causing cancer or reproductive toxicity."

Suspected carcinogens and reprotoxic substances are identified in various reports, lists and databases overseen by five "authoritative bodies" - the U.S. Environmental Protection Agency, FDA, the National Institute for Occupational Safety and Health, the National Toxicology Program or the International Agency for Research on Cancer, according to the bill.

HB10-1248 notes that "cosmetic products intended to beautify are most commonly used by women of childbearing age, increasing the likelihood of exposing mothers, fetuses and nursing children to substances that can cause cancer and reproductive toxicity." Similar rationale was included in California's bill.

Colorado's version relies largely on the public for enforcement. "Any person alleging a violation ... may bring an action against the manufacturer in a court of competent jurisdiction in the county where the violation occurred," the bill states.

"Upon finding a violation, in addition to any other relief authorized by law, the court shall order the manufacturer to cease and desist conduct violating [the law] and shall order the manufacturer to pay the prevailing party reasonable attorney fees and costs."

Moreover, offending companies are subject to civil penalties of up to $5,000 per violation per product for a first offense and up to $10,000 per violation per product for second or subsequent offenses.

Participating in a Feb. 24 panel in a general session at the Council's annual meeting, Procter & Gamble Vice Chair of Global Beauty and Grooming Ed Shirley commented on the potential impact of the bill. "Our products have a good probability of not being for sale on the shelves when consumers would like to come and buy them. ... They fundamentally want to take Pantene off the shelves, or Old Spice off the shelves."

He commended the Council's work in representing its members' interests. "They speak for us as an industry. ... If we don't speak with one voice, to the legislatures, then we run the risk that all of our products will be taken off the shelves or have to be reformulated - and not just in Colorado, because the requirements of Colorado will be different than New York or New Jersey or California, and then imagine having 50 different formulas."

According to Hurson, "the most effective thing" in its lobbying efforts is the participation of industry members and stakeholders who reside in states where cosmetics legislation has been introduced.

"We're relying on the salon owners in Colorado, the store owners that are representing your products out there. It's that local grassroots effect that is so important, and it sends the message that we have [support]," he said.

The "Colorado Safe Personal Care Products Act" is under review by the House Judiciary. If no referendum petition is filed and Colorado's General Assembly adjourns in May as scheduled, the legislation could become effective Aug. 11.

- Ryan Nelson ( ¹ [email protected] )