Earlier this month, the Food and Drug Administration confirmed the presence of asbestos in three products manufactured by Claire’s and Justice, two retailers whose products target pre-teens and teenagers. The contamination was first reported in 2017 and the FDA has now released test results that confirm the asbestos, which has been linked to various cancers and serious respiratory issues. This case illuminates the implications of the FDA’s sometimes limited authority—the administration can recommend a cosmetic recall but cannot order one and does not test cosmetic products for safety as it does with food and drugs. In this case, it’s up to the cosmetics manufacturers themselves to ensure the safety of the consumers who use their products, including disclosing safety procedures and listing ingredients. Many consumers who use cosmetic products like moisturizers, lipstick, makeup and perfumes might be surprised to learn that the FDA doesn’t need to approve them before they hit the market, so in most cases, many products you apply directly to your face and body haven’t been examined in the same way as your food and medicine.
The FDA’s authority when it comes to cosmetic products has a lot to do with a law called the Federal Food, Drug and Cosmetic Act (FD&C Act). The law distinguishes cosmetics from drugs based on each product’s intended use. The act defines cosmetics as “articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body…for cleansing, beautifying, promoting attractiveness, or altering the appearance.” In fact, products that are very similar are often regulated differently depending on how the product is marketed and what claims are made about its intended use. For example, a fragrance or perfume would be considered a cosmetic, but a fragrance that claimed to help the user relax or sleep better would be categorized as a drug.
While cosmetics companies and manufacturers are responsible for ensuring the safety of their products, the FDA can advise on recommended testing procedures and also has the authority to take action in the case of adulterated or misbranded products. Adulterated products include those that are composed of dangerous substances or that are packaged under insanitary conditions. Misbranded products have false, misleading or incomplete labeling or ingredient lists. In the case of the asbestos contamination, the Food and Drug Administration wasn’t able to test the products and prevent them from entering the market, but they could release testing results and recommend a recall on the basis of those results.
The good news is that cosmetics manufacturers can reference similar products and well-known toxicology testing methods to make sure their products are safe. And while they can’t require a recall, the FDA does monitor companies that conduct voluntary recalls. The agency also inspects facilities where cosmetics are manufactured and follows up on safety concerns and reports of adverse events. Unfortunately, the only way to enhance the FDA’s authority over these types of products would require an act of Congress to change the law. Given the likelihood of that, consumers would be well served to research the ingredients, testing methods and reporting transparency of their favorite cosmetics brands and products.
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