What Do Our 1938 Cosmetic Regulations Actually Say?

You may have heard the statistics before: Europe has spent the last decade banning nearly 1,400 chemicals from personal care products, Health Canada 600 and in the United States, we’ve banned a mere 30… Our cosmetics safety laws haven’t been significantly updated since 1938, when Franklin D. Roosevelt was President—meanwhile the science has evolved to show that some of the ingredients commonly used in the beauty industry have been linked to harmful health outcomes.


Plain and simple, our laws regulating cosmetics and personal care products are weak, ineffective and are failing to protect our health from toxic chemicals. Here’s the skinny on the United States cosmetic safety law that dates back to 1938:

Self-regulated $70 billion cosmetics industry

As you may have gathered thus far, under the 1938 Food, Drug and Cosmetics Act, cosmetics companies are self-regulating. It is up to the company to decide if their products are safe, and then we as consumers of these products are left exposed to several harmful ingredients in the products we use on our skin everyday. The industry has been running wild, unregulated and still uses many harmful chemicals.

Safer products in the E.U., Wild West in the U.S.A.

Under the European Union’s Cosmetic Product Regulation, they have restricted nearly 1,400 harmful ingredients in cosmetics, whereas the United States has only banned 30. The number of substances restricted in the U.S. is misleading however, since one of those products is “bovine parts” and the levels of mercury “allowed” far exceed any sort of “safe” level. No cow in my cosmetics…? Ok. Thanks?

But just because a product is sold in the E.U., doesn’t automatically mean it’s safe. Read more on this HERE.

Absurd levels of mercury allowed as a preservative

One of the other partially restricted 30 chemicals is mercury. We know that mercury is a harmful heavy metal, and that very low doses are very poisonous. That is why we advise women and children to limit their consumption of certain seafood and climate change advocates are pushing to close mercury-laden coal burning operations.

But here’s the deal, under the “restrictions” mercury can be used as a preservative in cosmetics in concentrations, as long as it is less than 65 parts per million. To put this into perspective, the NRDC’s seafood fish guide recommends that the maximum level of mercury tested in fish is over .5 parts per million.

Ingredients must be listed, sort of

It’s common for people to say, “Well at least ingredients need to be labeled on cosmetics.” But that’s not entirely true or common practice. The FDA also doesn’t have any authority to punish companies who fail to list all ingredients…and they aren’t checking. Second, the infamous “fragrance loophole” allows companies to hide ingredients used to make fragrances and scents. This can mean dozens or hundreds of fragrance chemicals not being included on your ingredient list. More on the health impacts of fragrances HERE.

Colors used in cosmetics must be approved in the FDA

This is one of the few things the FDCA does actually do, it requires the use of all natural and synthetic colors to be approved by the FDA. This doesn’t however mean that those colors are safe. As Beautyconter discovered while making their color cosmetics – heavy metals contaminate a wide variety of color cosmetics, including designer department store brands and “natural” or “organic” brands. Not all natural ingredients are safe. Not all synthetic ingredients are harmful.

Most soaps are regulated as “synthetic detergents”

Today most soap isn’t regulated as an actual soap. If a soap or body wash is created according to the specifics in the Food and Drug Administration’s criteria, it needs to be regulated as a drug, not a cosmetic. For that reason, most of the body washes and soaps we use today are still regulated under the cosmetics law as a “synthetic detergent”.

Over 3,000 ingredients can be used in a “fragrance”

Fragrance is an ingredient listed on many cosmetics, lotions and shampoos. This seemingly simple word can be a cover of over 3,000 different chemicals. Cosmetic manufacturers purchase fragrances from “fragrance houses” and in most cases, the manufacturer doesn’t know what chemicals are used to make that particular scent. The use of chemicals like phthalates and others fragrance allergens are commonly used to create these scents. So manufacturers (and you) don’t know what is lurking behind that simple word “fragrance.” Only purchase personal care products from company’s who fully disclose all fragrance ingredients. Read more HERE about how to avoid common fragrance allergens.

Products can’t be moldy (ew!)

There is a provision that says products can’t be “adulterated” and is the provision that requires cosmetics to be adequately preserved. The law does not want products on the shelves (or sitting in your cabinet) to develop mold, yeast or bacteria, which means they need to be preserved in some fashion. Keep in mind that without preservation – mold, yeast and bacteria grow quickly in products, within weeks.

Not only is this gross, it’s hard for companies to know how long a person will keep a product and use it. Here’s the problem: some preservatives are harmful, especially at high doses (they are designed to kill after all). Parabens are commonly used in cosmetic and personal care products and have been linked to hormone-disruption. Some companies seeking to protect their customers from contaminated products use food grade or less harmful preservatives like potassium sorbate, sodium benzoate and small amounts of phenoxyethanol.

Some essential oils have naturally preserving properties, but often can’t be a solitary preservation solution for companies. In addition, many people react negatively to essential oils, especially on the face and near the eyes. There are few long term studies showing health impacts of some essential oils and the impact on preservation beyond short term solutions. The use of preservatives is complicated and not perfect, but it’s so important not to take preserved products for granted. I am confident that we will see the next generation of effective, safer preservatives emerging in the coming years.

FDA can’t recall harmful products

When salon owners complained about their stylists getting sick from administering Brazilian Blowout, a hair straightening treatment that relies on up to 40% formaldehyde, the FDA couldn’t remove the product from the market. Recall authority is an important element that needs to be included in reforming our federal cosmetic safety laws.

Cosmetic Ingredient Review panel

The Campaign for Safe Cosmetics describes the Cosmetic Ingredient Review panel (CIR) as the “fox guarding the hen house.” Established in 1976, the CIR is an industry funded panel that has been tasked to review the safety of ingredients used in the beauty industry. Over the last four decades the CIR has only reviewed just over 10% of cosmetic ingredients and they have only found 9 ingredients that shouldn’t be used in cosmetics at any level.

Based on my research, the CIR has found several ingredients to be “safe as used” where there is a strong scientific body of evidence showing harm. Some include:

  • Benzylparaben
  • BHT
  • Butylparaben
  • Dimethyl phthalate
  • PEGs
  • DMDM Hydantoin
  • EDTA
  • Propylene glycol
  • Retinyl palmitate
  • Toluene

Products cannot be “mis-branded”

Ahhh, if only this part of the cosmetics law was actually followed! Unfortunately for many companies dedicated to full transparency, they are paying a price, even if it’s the right thing to do. Many natural and green brands are “misbranding” their products by hiding preservatives and ingredients by buying pre-preserved products. The terms “natural”, “organic” and “safe” are unregulated and can be used with no substantiation. I encourage people to shop with companies who clearly spell out how they define safety.

What does this mean for a company that is dedicated to full transparency of their ingredients? They will be perceived as ‘less safe’ than their competitors who are failing to tell the truth. All the more reason for us as consumers to ask hard questions.

What should I buy?

It’s a minefield and there is clearly a lot of work to be done to updated our broken cosmetics safety laws. There are several brands that are doing good work to create safe products, but one stands out for me. I work for Beautycounter, a company dedicated to creating safer, high performing products.

Never miss a post and join my mailing list.

Related posts

Understanding Beauty Industry Certifications

We all have different needs when it comes to skin care and beauty products, both in terms of what we…
Read more

Hot Take on the Class Action Lawsuit Against SEPHORA's Clean Program

A recent class action lawsuit against the Clean at SEPHORA program showcase fundamental issues that…
Read more
BeautyBroken LawsPolitics

Which Beauty Ingredients Are Banned By the FDA?

The short and easy answer to this question is…not many. The Food and Drug Administration (FDA) has…
Read more

Sign up for Weekly Digest, tailored for you.


Leave a Reply

Your email address will not be published. Required fields are marked *