|As FDA Rejects BPA Ban, Congress Looks Set To Punt On Chemical Reform|
by Amy Westervelt, Forbes
March 30th, 2012
**Update below** It’s quite the week for chemicals regulation. The FDA is set to rule on whether to ban the use of bisphenol-A (BPA) in food packaging today (check back here for an update when the ruling comes through), and the House began hearings on overhauling the Federal Food, Drug and Cosmetics Act earlier this week that seemed heavily weighted toward supporting industry over regulation.
On Tuesday, the House held its first hearing on the Safe Cosmetics Act, a piece of legislation initially introduced by Representative Jan Schakowsky (D-IL) in 2010, and reintroduced in an updated form in June 2011. When Schakowsky first introduced the bill it was the only suggestion on the table for reforming the Federal Food, Drug and Cosmetic Act, which hadn’t been touched in decades.
Since the introduction of the bill, two other pieces of legislation have been proposed: at the hearing, Reps. Frank Pallone (D-NJ) and John Dingle (D-MI) introduced the Cosmetics Safety Enhancement Act. That bill calls for companies to pay $500 in user fees and would grant recall authority to FDA for cosmetics. It would not, however, eliminate the use of certain chemicals of concern nor require full disclosure of cosmetic ingredients. Also on the table now is a proposal written by the Personal Care Products Council, a trade group representing the cosmetics industry (members include the Estee Lauder Companies, L’Oreal USA, and Procter & Gamble Cosmetics, among many others), which aims to have the FDA codify into law the ingredient safety decisions made by the Council’s own Cosmetic Ingredient Review Panel. Founded in 1976 as part of the trade association, the Cosmetic Ingredient Review Panel regularly evaluates the safety of ingredients in cosmetics and personal care products. While the Personal Care Products Council (PCPC) insists that the Review Panel operates independently of the industry, those supporting the Safe Cosmetics Act equate the PCPC’s proposal with allowing the industry to self-regulate.
Such a move would be “unprecedented” and possibly unconstitutional, according to Michael Landa, Director of the Center for Food Safety and Applied Nutrition at FDA, who testified at the hearing. Advocates of the Safe Cosmetics Act also voiced concerns over the line-up of witnesses at the hearing. Several supporters of the act who had been scheduled to testify were uninvited days before the hearing, resulting in testimony being dominated by witnesses from the industry.
Those witnesses were actually asking for regulation reform as well, albeit in the form of industry-selected regulations. ”Even though FDA has repeatedly stated that cosmetics are the safest products they regulate, it is time to bring FDA’s statutory authority up to date,” said Covington & Burling senior counsel Peter Barton Hutt.
The primary concern, however, seemed to have more to do with wanting to avoid increasingly stringent state laws, such as California’s Safe Cosmetics Act of 2005. “Myriad diverse state regulations would substantially increase the cost of producing and distributing personal care products,” Curran Dandurand, chief executive officer of men’s personal care products company Jack Black, told the Energy and Commerce subcommittee on health. “The consequences for small business owners would be disastrous.”
Meanwhile, Michael DiBartolomeis, PhD toxicologist and head of the Safe Cosmetics Program for the California Department of Health, testified that companies have reported to his office 17,060 personal care products that contain one or more of 96 carcinogens or reproductive toxicants. The reporting is required by the California Safe Cosmetics Act of 2005 and the results underscore the need for better regulation of personal care products nationwide.
While public health advocates now seem less than optimistic about the chances of the Safe Cosmetics Act, the environmental health community remains positive about the FDA’s pending decision on BPA.
“The FDA has been pushed to embrace a broader body of scientific evidence, beyond the two industry-backed reports it used to evaluate BPA back in 2008,” said LeeAnn Brown, press secretary for Environmental Working Group, which has been instrumental in the push to ban BPA in food packaging. “Studies showing that BPA poses some health danger outweigh those revealing it as safe nine to one.”
While some studies by government scientists, commissioned by the FDA, have been inconclusive, proving neither the safety nor the risk of the additive, the agency stated in 2010 that it had ”some concern about the potential effects of BPA on the brain, behavior, and prostate gland in fetuses, infants, and young children.”
Whichever way it goes, the FDA has until the end of today to decide on the BPA ban. The deadline was set as part of a legal settlement with the Natural Resources Defense Council (NRDC), which petitioned the agency to ban the plastic additive years ago. And whether or not it’s banned, BPA may have garnered so much negative consumer attention that companies are less likely to use it. In a statement last October, the American Chemistry Council stated that its members were no longer using BPA in baby bottles or children’s cups.
Nonetheless, the chemical industry has been hard at work against the
proposed BPA ban, pushing out lists of experts who can confirm the
safety of the additive. The NRDC has been the focus of various media
attacks as well, including the very unfortunate publication
on Forbes.com of a fabricated memo that a contributor claimed had come
from the NRDC and included statements attributed to a senior scientist
with the organization claiming that although BPA had been cleared by
science, it needed to be fought anyway. The contributor, Jon Entine, admitted the memo was false and claimed it was intended to be a parody. It has since been removed from this site.
**Update: The FDA has rejected the BPA ban. Read more about it here. **