Cosmetic safety legislation threatens to spur more recalls

Cosmetic companies have been a target of consumer activists for years. Organizations like Environmental Working Group and Campaign for Safe Cosmetics have run campaigns that resulted in companies reformulating products or defending themselves publicly and in courtrooms across the country. As far as we can tell, these attacks won’t change; in fact, we can expect them to intensify as regulators tighten their control over the companies.

The reality of the situation is this: consumers are becoming more concerned about what’s in their products and more aware of the alleged regulatory loopholes for the cosmetics industry. This is in part due to the efforts of consumer advocacy organizations and likely underscored by concerns about alleged product carcinogenic contamination with talc – a common ingredient in various cosmetic products. As a result, pressure on Congress and the FDA to increase regulation on personal care products is growing.

At the end of last year, Rep. Frank Pallone (D-N.J.) introduced the Cosmetic Safety Enhancement Act of 2019 (H.R. 5279) – proposed legislation that would overhaul current cosmetics safety law. Just this month, a U.S. House Energy and Commerce subcommittee advanced the bill.

If passed, the legislation would require cosmetics manufacturers to register their facilities, notify the FDA of any adverse events associated with their cosmetic products, and would empower the FDA to conduct safety reviews of cosmetic ingredients and mandate recalls of products associated with serious adverse health events. It’s a gamechanger that will likely result in a significant jump in regulatory enforcement actions, recalls and fines.

If you are a cosmetic company, here’s our advice on how to prepare for potential changes in regulatory oversight.

  • Maintain a Contingency Plan. Develop and plan every step you would take in the case of initiating a recall. Remember – your reputation is on the line when a product is recalled if the appropriate measures aren’t followed. The best thing you can do is prepare ahead of time.
  • Be Aware of Potential Contaminants. To prevent reputational damage, make sure you are aware of and testing for potential contaminants. For example, make sure you’re testing for all the potential contaminants on consumer NGOs’ radar. Switch suppliers or reformulate products if you can. Better to be proactive than reactive.
  • Assign Production Lot or Batch Numbers: Whether lot numbering is required by law or not, we recommend that you assign production lot or batch numbers as it will allow you to determine which specific products need to be recalled. If products don’t have lot numbers, it will be almost impossible to identify which products to recall, and you may have to recall all that are on the market.
  • Be Transparent with Customers and Consumers. If you find yourself in the case of having to recall a product due to a contaminant, one of the most important things to remember is to remain transparent with your customers and consumers. Communicate with them through email and phone calls often, and answer all their questions. Ensure them that you are taking all precautionary measures to prevent any additional damage the product may cause, and are working to fix the problem.

With or without the passage of H.R. 5279, consumer activists and lawmakers will keep trying to assert more control over cosmetic companies. Our experience tells us that at some point they will succeed. So time and resources spent on the issue will make you less of a target for consumer activists now and protect your reputation in the future.

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