BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 977
AUTHOR: Yee
AMENDED: June 4, 2012
HEARING DATE: June 13, 2012
CONSULTANT: Moreno
SUBJECT : Sherman Food, Drug, and Cosmetic Law: nail polish.
SUMMARY : Makes a manufacturer of nail polish that violates
provisions of the Sherman Food, Drug, and Cosmetic Law (Sherman
Law) related to misbranded cosmetics or any regulation adopted
pursuant to those provisions, if convicted, subject to a fine of
up to $15,000.
Existing law:
1.Prohibits misbranding of a cosmetic, as specified.
2.Requires the Department of Public Health (DPH), under the
Sherman Law, to regulate the manufacture, sale, labeling, and
advertising activities related to food, drugs, devices, and
cosmetics in conformity with the federal Food, Drug, and
Cosmetic Act.
3.Makes any person who violates any provision of the Sherman Law
or any regulation adopted pursuant to it, if convicted,
subject to imprisonment for up to one year in the county jail
or a fine of up to $1,000, or both.
This bill:
1.Makes a manufacturer of nail polish that violates provisions
of the Sherman Law related to misbranded cosmetics or any
regulation adopted pursuant to those provisions, if convicted,
subject to a fine of up to $15,000.
2.Contains an urgency clause that will make this bill effective
upon enactment.
FISCAL EFFECT : This bill is keyed non-fiscal.
COMMENTS :
1.Author's statement. Consumers and nail salon workers deserve
to be informed of what is in the products they use. While we
have made great strides in ensuring safer working conditions
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in nail salons, the presence of sometimes dangerous chemicals
still persists. There are no excuses for manufacturers to
mislabel or misrepresent the substances in their products. The
purpose of this bill is to influence the bad behavior of some
nail polish manufacturers by instituting a greater monetary
disincentive against mislabeling or misrepresenting the
ingredients in nail polish cosmetics. This bill attempts to
address a health and public safety risk to consumers and,
especially, the nail salon workers who are exposed to nail
polish on a daily basis.
2.Background. According to the Department of Toxic Substance
Control (DTSC), nail products are known to contain toxic
chemicals, such as dibutyl phthalate (DBP), toluene, and
formaldehyde, that are health and safety concerns for about
121,000 nail salon workers in California. DBP and toluene are
known to the state of California as developmental toxins.
Formaldehyde is a known carcinogen. These three chemicals are
commonly called the "toxic-trio" and are a part of an ongoing
debate over nail product safety and potential health risks for
nail salon workers.
3.DTSC report. In May of 2011, DTSC conducted a limited-scale
sampling of nail products offered for sale in the San
Francisco Bay Area. A small number of nail product
manufacturers claimed to have removed some or all toxic-trio
chemicals from their goods. DTSC's objective in sampling the
products was to verify the removal of the toxic-trio in nail
polish, to determine baseline levels of certain chemicals, and
to examine trends of ingredient substitutions. Twenty-five
products, representing six product categories, were randomly
collected from six distributors who supply products to nail
salons. Of the twenty-five products collected, manufacturers
claimed that twelve were free of at least one toxic-trio
chemical and seven were free of all three toxic-trio
chemicals. Manufacturers of thirteen products made no claims
about chemical content (DTSC refers to these as "traditional
products").
Toluene was found more frequently and in higher concentrations
in products that were claimed to be free of one or more of the
toxic-trio chemicals than in traditional products. Ten of the
twelve products with "toluene-free" claims actually contained
toluene. Claims by manufacturers that products were free of
all three chemicals could not be substantiated in five out of
seven instances. DTSC also detected chemicals whose purpose,
SB 977 | Page
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property, human toxicity, and environmental fate are unknown.
Based on the findings, DTSC recommended that manufacturers
disclose nail product formulations. Additionally, DTSC urged
increased collaboration and coordination among interested
stakeholders, along with expanded outreach, education, and
training of nail salon owners and workers.
4.Double referral. This bill is double referred. Should it pass
out of this committee, it will be referred to the Senate
Committee on Public Safety.
5.Prior legislation. AB 237 (Galgiani) of 2011 and AB 595
(Dymally) of 2007 would have required cosmetic product
manufacturers that do not comply with the U.S. Food and Drug
Administration (FDA) Voluntary Cosmetic Reporting Program
(VCRP) to provide to DPH the same kind of information
disclosed through the VCRP. AB 237 was held on the Assembly
Appropriations Committee suspense file, and AB 595 was held on
the Senate Appropriations Committee suspense file.
SB 1712 (Migden) of 2008 would have required a manufacturer of
lipstick sold in this state to provide evidence to DPH that
the lipstick contains no more than an unavoidable trace of
lead. SB 1712 died in the Assembly Health Committee.
SB 484 (Migden), Chapter 729, Statutes of 2005, establishes
the California Safe Cosmetics Act of 2005, which requires
cosmetic manufacturers to disclose to DPH a list of their
products' chemical ingredients that cause cancer or
reproductive harm.
AB 908 (Chu) of 2005 would have prohibited a person or entity
from manufacturing, selling, or distributing in commerce any
cosmetic that contains any of two specified phthalates, and
would have defined a cosmetic as misbranded if sold by an
internet website where the list of ingredients in the cosmetic
is not easily viewable before the purchase. AB 908 failed
passage in the Assembly Health Committee.
AB 2025 (Chu) of 2004 would have required the manufacturer of
any cosmetic or personal care product sold in California to
submit to the California Office of Environmental Health Hazard
Assessment (OEHHA) a list of ingredients contained in the
product, including the name of each ingredient for purposes of
fragrance or flavoring and the name of each ingredient
identified by the phrase "and other ingredients." AB 2025
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would have banned a cosmetic or personal care product that
contains a chemical known to cause cancer or reproductive
toxicity unless OEHHA issued a safe use determination on that
product. AB 2025 was not heard in the Assembly Health
Committee at the request of the author.
AB 2012 (Chu) of 2004 would have required, by January 1, 2006,
the manufacturer of any cosmetic or personal care product
subject to regulation by the FDA and manufactured, processed,
or distributed in commerce in the state to notify OEHHA of any
ingredient in its product that is a chemical identified as
causing cancer or reproductive toxicity, as specified. AB
2012 failed passage in the Assembly Health Committee.
6.Policy comment. This bill raises the penalty for misbranding
of one type of product to $15,000 while the penalty for
misbranding other products will remain $1,000. The bill's
urgency clause states that the bill is needed in order to
protect the health and safety of consumers and salon workers
from the harmful effects of some of the ingredients of nail
polish. There may be other cosmetic products that contain
harmful chemicals and pose risks to the health of consumers
and workers. It is unclear what sets the use of nail polish
apart from the use of other cosmetic products. If a $1,000
fine is an insufficient deterrent to prevent the misbranding
of nail polish, perhaps the author should consider raising the
penalty for misbranding cosmetic products across the board.
SUPPORT AND OPPOSITION :
Support: Personal Care Products Council
Oppose: None received.
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