Chemical Soup and Federal Loopholes

Phthalates, the chemicals used in some cosmetics, may keep your nail polish hard and shiny and your tresses thick and glossy, but in animal tests they cause birth defects, disrupt hormone systems and lead to reproductive problems. Those are just a few of the reasons the European Union recently banned them. Now, despite a huge outcry from the $35 billion cosmetics industry, some California lawmakers are trying to ban phthalates in the U.S.

California Assemblywoman Judy Chu has introduced a bill that would ban the same two types of phthalates as the EU did. In part because the FDA does not conduct pre-market health testing of cosmetics ingredients (nor require cosmetics makers to do so), Chu was moved to present a similar bill last year that would have banned phthalates and other chemicals blacklisted by entities like the International Agency for Research on Cancer, the European Union and the Environmental Protection Agency.

Those efforts were defeated. But if passed this session, Chu's Phthalates Ban Bill (AB 908), would be the first ever phthalate ban in the United States.

"After three decades of extensive studies [on] carcinogens and reproductive toxins, the EU banned two phthalates and those are the two that I am proposing to ban," Chu said in a recent telephone interview. "It is outrageous that American women aren't give the same protections that European women are. How can a whole continent of women be protected yet Americans ignore this?"

Chu says she would also like to make companies list any phthalates on product labels but has set aside that politically more difficult task (the industry argues that rejigging its labeling process presents huge economic burdens and could infringe on trade secrets).

During last year's legislative session, Chu's original bill (AB 2012), would have prohibited phthalates and forced cosmetics manufacturers to disclose to state officials any hazardous chemicals on their products. That bill failed to pass the Assembly Health Committee after intense industry opposition.

"They probably spent millions lobbying against it," says Chu. "They flew people in from New York and spent days and days lobbying members." Supporters of the bill, ranging from the United Food and Commercial Workers to the Breast Cancer Fund were no match.

This time round, the cosmetics industry plans to mount the same kind of campaign.

"We intend to vigorously oppose any similar legislation this year," says Irene Malbin, a spokeswoman for the Cosmetics, Toiletry and Fragrance Association, a trade association in Washington representing 600 companies such as Revlon and Mary Kay.

Growing Uneasiness

The bills come amidst growing public uneasiness over cosmetics ingredients, especially after the EU ban, enacted in 2003 and implemented in September 2004, prohibited the use of chemicals, including phthalates, known or suspected of being toxins, mutagens and reproductive toxins.

Activists say the ban, the bills and the issue of phthalates all tell a tale of regulatory lapses, flawed scientific argument, and negligence from a powerful industry that, oddly enough, is the nation's primary arbiter over the safety of cosmetics ingredients. Jeanne Rizzo, director of the Breast Cancer Fund and director of the Campaign for Safe Cosmetics, hopes the European ban will help give cosmetic safety – long buried in the environmentalist's in-box – its overdue day.

"Cosmetics makers who sell their product in Europe will have to reformulate their products and we are arguing that they use those reformulations here," she said in a telephone interview from her home in California. By forcing companies to find safer chemical formulations, and by boosting consumer awareness, optimists say the ban could shift corporate behavior in American markets and stoke political will to regulate.