Laws and regulations provide guidance and shape many aspects of the professional skin care industry. Federal laws, and the regulations put into place to enforce them, dictate how skin care products are made, advertised, used and sold. Professional regulation, and what it entails from state to state, has also become a significant part of the professional skin care industry as a whole. (See The History of Professional Regulation of Estheticians.)
To truly understand the evolution of skin care ingredient regulations in the United States, let’s rewind to 1938, when Congress gave the U.S. Food and Drug Administration (FDA) authority to oversee food, drug, and cosmetic safety. It’s also important to examine two laws and regulations that have played crucial roles in the beauty industry: the Federal Food, Drug and Cosmetic Act (FD&C Act) of 1938, which established definitions of “drugs” versus “cosmetics”; and the Fair Packaging and Labeling Act (FPLA) of 1966, which prohibited marketing of misbranded and/or adulterated products. Also important, the Wheeler-Lea Act (or Advertising Act), passed in 1938, provided the Federal Trade Commission (FTC) authority to regulate advertising on food, drug, cosmetics and medical devices.
Consumer confidence is jeopardized when false claims are advertised on products. However, clients can be reassured that licensed skin care professionals take great care when selecting which products they will use and sell. Skin care professionals have become increasingly savvy and selective when it comes to the purchase and use of products. According to recent data from the International Spa Association (ISPA), spa revenue reached $13.2 billion by year end in 2011, indicating that the number of skin care products and skin care services continues to grow.
The consumer in mind
Since the inception of legislation and regulation overseeing cosmetics and personal care products, the federal government and the professional beauty industry have worked to protect consumers. The FDA’s authority over cosmetics and personal care products is wide-ranging. Manufacturers of personal care products are required to ensure their products meet the standards set forth by law.
The Fair Packing and Labeling Act, established in 1966, requires consumer products to contain a proper informative label. Professional skin care products may be considered misbranded if any of the following examples exist:
- The product container is misleading;
- The label does not include required information;
- The label information is false; or
- The label and the required information is not prominent.
Established in 1976 with the support of the FDA and the Consumer Federation of America (CFA), the Cosmetic Ingredient Review (CIR) expert panel was formed to determine the safety of ingredients under their intended conditions of use. The panel, comprised of seven members, including a dermatologist, toxicologist, consumer representative and an industry scientist, review and assess ingredient safety data, extensive research, literature and studies. The CIR safety assessments are available for public review and are published in the International Journal of Toxicology.
Cosmetic or drug?
Chemicals contained in a product, as well as the designated use of a product, help determine the product’s skin care category. Because skin care products can have the effects of both a cosmetic and a drug, the distinction between cosmetics and drugs may be blurred.
According to the FDA, a drug is defined as a substance intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease, AND is a substance (other than food) intended to affect the structure or function of the body. A cosmetic is 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.
Products that move past the cosmetic definition, such as a prescription acne treatment, are considered drugs under these definitions. But many drugs can have cosmetic properties—antiperspirant deodorants and dandruff shampoo, for example. Skin Protectant Drug Products is one of the most important over-the-counter drug categories. Other categories include medical devices, such as devices used for microdermabrasion services and hair removal.
The final Monograph, or detailed report/study, issued in 2003, confirmed that claims of “moisturizes, soothes, smoothing, rubbing, friction and lubrication” are cosmetic claims.
The intended use of skin care products influences the classification of that product. The Wheeler-Lea Act, mentioned previously, gave the FTC the authority to regulate advertising claims of FDA-regulated, nonprescription personal care products. Marketing a skin care product with a drug claim or a drug with a cosmetic claim can result in warning letter from the FDA.
Regulations by state
Challenges facing skin care regulation emerge when the process of compliance differs from the standards set in place by the federal government. This is the case with skin care regulation in some individual states. How to regulate and what to regulate must be clear. Over-regulation could have a negative effect and derail the goals of legislation.
Currently in California, proposed regulations for compliance of the Green Chemistry Initiative have caused concern for many industries, including skin care manufacturers, distributors and retailers. The potential impact, positive or negative, of the Green Chemistry Initiative is not yet clear, but the main purpose of the regulations are to identify chemicals of concern used in manufacturing, and find alternatives to lessen environmental and public health impacts. Additional information regarding California’s Green Chemistry Initiative can be found at www.probeauty.org/greenchem.
Inconsistency with licensing regulations across states also impacts the scope of practice for estheticians. From the hours required to complete programs/school, and continuing education requirements to licensing reciprocity, it is clear that inconsistent regulation from one state to the next poses a continued challenge to the professional beauty industry, as well as skin care professionals.
The Safe Cosmetics Alliance
Currently, the FDA maintains a voluntary registration program for cosmetics and skin care products. Newly proposed legislation supported by the Safe Cosmetics Alliance (SCA), which is made up of various industry groups, would enhance the FDA’s authority over personal care products. The Alliance was formed to encourage and support science-based legislative and regulatory policies that enhance current consumer safeguards and strengthen FDA oversight of cosmetic and personal care products to ensure continued product safety. The Cosmetic Safety Amendments Act of 2012 (HR 4395), would promote innovation and growth, and maintain high safety standards for the nation’s beauty and personal care industry. Additional details regarding the Safe Cosmetics Alliance, and the Cosmetic Safety Amendments Act can be found at www.safecosmeticsalliance.org.
Continuing efforts to provide consumer safety based on sound science is essential for the growth and prosperity of the professional skin care industry. Congress uses legislation to provide authority to agencies, such as the FDA. To update or change the authority over cosmetics and skin care products, Congress would need to change the law. The Cosmetic Safety Amendments Act of 2012 would improve the authority of the FDA to allow for continued consumer confidence and innovation in the industry. Skin care professionals must stay informed about regulatory issues in order to help ensure the viability of their industry and career, and have the opportunity to participate at the grassroots level by attending their state board meetings and familiarizing themselves with their state legislators. If you aren’t active in maintaining the integrity of your profession, its existence may be threatened in the years to come.
Myra Y. Irizarry is the director of government affairs for the Professional Beauty Association (PBA). She heads PBA’s efforts to track and respond to legislation with potential to affect the beauty industry at both the state and federal levels, and works with an extensive group of industry volunteers to coordinate grassroots efforts and establish working relationships with legislators. She can be contacted at firstname.lastname@example.org.