The Safe Cosmetics Act 2011 is now publicly available and you can read it here. I have carefully reviewed every section of The Safe Cosmetics Act, H.R. 2359 and it is my firm belief that the bill is fundamentally flawed and could not go through enough revisions to gain Essential Wholesale’s support. For that reason, we oppose H.R. 2359. You can read my point by point opposition here.
Our objective as small business owners is to gather support to defeat H.R. 2359 rather than to accept the small business exemptions in this draft of the bill, which amount to small and insignificant tokens of compromise when they are viewed in context of the entire bill. I have shared bullet points to explain my opposition of the bill and show the adverse impact on small businesses and the cosmetic industry as a whole.
Looking at the current make-up of the House of Representatives, I am confident that we can stop this bill, especially given the economic environment and the fast approaching elections. Most members of Congress are reluctant to do anything that will adversely impact businesses of any size, including raising fees, increasing taxes, and making it in any way harder for them to increase hiring. Share with your Representative how this bill will impact your business and let your voice be heard.
We ask that all small business owners takes the time to thoroughly read the entire bill, not just the exemptions in a vacuum, and understand all aspects of the legislation prior to supporting it. While it is true that small businesses are exempt from fees and registration, they are not exempt from numerous flawed regulations that minimize any positive impact the exemptions might otherwise have.
If this bill were to pass, small businesses would be unable to comply with even a fraction of what is required, because its overall impact, even with the exemptions, would cost them far more than any fee or registration requirement. And, I haven’t even started discussing the adverse impact this bill would have on the consumers who have benefited from being able to choose handmade soap and cosmetic products made by small and independent American businesses.
I have not come to this conclusion lightly. I have read and re-read the bill in excruciating detail.
Impact of the Safe Cosmetics Act on Small Businesses
Small businesses are exempt from registration and fees, but the costs of complying with the rest of the requirements of the bill will far outweigh these costs.
In addition, these exemptions would place a large target on small businesses for big businesses, Campaign for Safe Cosmetics (or as some say “Campaign for Scaring Consumers”) and the Environmental Working Group to use to say that cosmetics from small businesses are the only unsafe cosmetics in the world due to lack of compliance.
All small businesses, soapers and crafters would fall under “professional use” and “vulnerable populations” sections of the bill.
Small businesses, and big, could never comply with the “reasonable certainty of no harm” section of the bill that requires omniscient-like knowledge of consumers environment and buying habits to account for “additive effects” and “cumulative exposures” of every potential customer of their cosmetics. The safety standards are simply impossible to comply with and leave all businesses vulnerable to closure, fines and/or private lawsuits.
Small businesses that are not registered will not receive up to date information regarding changes in regulations, ingredient safety and will suffer due to the fact that they are segregated out of the communication loop between the FDA and cosmetic companies.
Consumers would get the impression that the products of big businesses are safer than those from small businesses due to the difference in regulation.
The costs of raw materials will increase for everyone. Small businesses buy ingredients from suppliers who will have to pay the registration fee and comply with the new regulations. The trickle-down effect of the costs of compliance will hit both consumers and small businesses.
Many small businesses use Private Label and Contract Manufacturing companies. These relationships that have long been protected and private will now be forced out into the open with many of the requirements in this legislation. In addition, many of the Private Label and Contract Manufacturing companies are large enough to be required to register and/or pay the fees required in this legislation and the costs will be passed down in higher prices to the small businesses.
All businesses will be required to disclose their supply sources to the government rather than simply INCI names or CAS # of an ingredient.
All finished cosmetics, whether from a big or small business, will require pre-market testing in order to comply with the parts per billion contaminant ingredient listing and MSDS creation. The costs of pre-market testing for contaminants from ingredients, the combination of ingredients and packaging would be a barrier to entry for small businesses and put the majority of them out of business with the enactment of this bill. In addition, all MSDS will be required to be available in any language and small businesses will bear the cost of producing those in all translations.
MSDS are for the handling of hazardous material. The simple fact of requiring a MSDS for all finished cosmetics treats them as if cosmetics are hazardous materials. This creates the wrong impression of cosmetics and will lower the value of MSDS when companies are truly handling hazardous materials.
The paper trail required of MSDS for finished cosmetics and an MSDS for all of the ingredients in each cosmetic is a ridiculous waste of paper and natural resource in the day and age when companies are trying to operate green and paperless.
Many small businesses specialize in natural and organic cosmetic products. There is no exemption for botanicals and no guarantee that they will be among the first 300 ingredients given listing and approval in the first year. All cosmetic chemicals already have safety data that will make it easier for non-botanical cosmetics to prove safety before the natural industry.
The requirement for all suppliers and manufacturers to submit safety data and information for their ingredient will virtually end the supply of fair trade and small farm natural botanicals. It will be impossible for small farmers in the United States, overseas or in the small villages that supply fair trade ingredients to comply with this regulation. The safety data would require the testing for and disclosure of all contaminants in parts per billion requiring sophisticated testing procedures.
The bill requires that the Secretary send “notification of failure” to “each known customer” if the Secretary fails to act in time to a cosmetic or ingredient. This would require small businesses to track their customers, even if they sell at a craft or farmers market. This is simply impossible and over-reaching.
Suppliers of ingredients would be required to do pre-market testing on their ingredients based on what “the supplier expects may be used in a cosmetic” which would be costly and simply an impossible act of mind reading and again omniscient knowledge.
Many times throughout the bill there are requirements for tests to be repeated even if the ingredient was tested already by another source. Even if the supplier of an ingredient has complied the manufacturer of the cosmetic must repeat the process for the finished good in the retail packaging.
The 24 hours given to respond and appeal a “cease distribution” will require small businesses to have 24 hour legal representation on hand. This will simply cause small businesses to fold in the case of a cease distribution order, even if it is unwarranted.
Small businesses will be unable to afford to “petition for information to remain confidential” which will put them at a distinct disadvantage to those who can afford a legal staff.
All small businesses who think they got a pass with the registration and registration fee need to be well aware that your products will not be exempt from this random testing. I think my favorite part of this is “or other relevant issues of concern (as determined by the Secretary).” Which makes these random tests like the ultimate of pop quizzes – you won’t even know how to prepare for the test because you don’t know what it might cover.
Universal Flaws of SCA that Impact the Entire Cosmetic Industry
Label Confusion: There is no exemption for contaminants that occur in nature and appear in botanicals. In addition, the process of writing a descending order label with all components and contaminants of every ingredient will require percentages of each to be known and merged like a Rubik’s cube. It will take a math whiz to accurately produce a correct label.
International Confusion: American made cosmetics will be completely out of step with the rest of the world and simply confuse consumers with long, unrecognizable ingredient lists.
Aromatherapy: All essential oils will be required to list constituents and contaminants making it impossible to recognize the essential oil used and wrongly alarming consumers.
Authoritative Source: The Secretary and resources for safety information are less qualified to address the safety of cosmetic ingredients than the current CIR Panel. This will cause confusion and the listing of ingredients never used in cosmetics and information unrelated to the topical use of ingredients.
Duplication of Registration: In Sec 619 of the bill the manufacturer and distributor of a cosmetic are both required to have a registration number. This would force even more layers of red-tape and expenses into the cost of cosmetics for consumers.
New Wild, Wild West: Small businesses, and big, would all be at risk of the new Wild, Wild West created by this bill. According to Sec. 620 ANY “responsible party” that has ANY “reason to believe that a cosmetic” is adulterated or misbranded by the definitions of this new legislation and has ANY reason to “present a reasonable probability that the use or exposure to the cosmetic (or an ingredient or component used in any such cosmetic) will cause a threat of serious adverse health effects or death to humans” has the right to turn your into the Secretary. It will be your duty to defend yourself against ANY and ALL inaccurate “probability” that someone has that your product will cause “adverse health effects or death to humans” despite the fact that no cosmetics EVER have.
Adverse Health Effects: The term adverse health effect is not clearly defined in the bill, despite being peppered throughout the language of the bill. In reality an adverse health effect could be an allergic reaction, which given the range of allergies in the world would be impossible to avoid in one in a million people.
You can help stop this bill by sharing your opposition at Open Congress, writing your Representative and spreading this message through your channels of influence. If you are on twitter, please use #no2sca to help quickly spread the message.