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Image: Honest

From Tata Harper’s Hydrating Floral Mask, which promises to provide its users with “natural sources of antioxidants” and Herbivore’s Bakuchiol Serum, a “100 percent natural, plant-based retinol alternative serum” to Farmacy’s “natural acids”-centric Resurfacing Night serum, Ren’s “non-nano naturally derived zinc oxide” sunscreen, and Honest’s stable of “natural” beauty and skincare products, “all-natural” cosmetics are being brought to market with notable frequency, as consumers demand cleaner approaches to their traditional beauty routines.

The burgeoning natural beauty market comprises a small portion – a little less than $15 billion as of 2018 – of the $500 billion global market for beauty and personal care products, per Grand View Research, but it is growing swiftly, and is expected to reach a value of more than $48 billion by 2025. This explosion in product has provided particuarly-enthusiastic millennial and Gen-Z consumers with more natural options than ever previously imaginable. At the same time, it has also led to an influx in marketing that banks on buzzy catchwords like “natural,” “green,” “clean,” and “eco.,” among others, and with this has come a marked decline in clarity around what is what.

With such sweeping natural beauty marketing in play and given an enduring lack of willingness by U.S. government entities to clearly define what “natural” actually means from a cosmetics perspective (there has not been a major federal update to cosmetics regulation in 81 years), a New York Congressman has introduced a bill to do just that. By way of the newly-drafted Natural Cosmetics Act, which was formally presented to the House of Representatives’ Energy and Commerce Committee this month, Representative Sean Patrick Maloney seeks to amend the Federal Food, Drug, and Cosmetic Act “to treat cosmetics with packaging or labeling using the term ‘natural’ as misbranded unless the product meets certain standards.”

As of now, the 1938 Federal Food, Drug, and Cosmetic Act does not consider the improper labeling of cosmetic products as “natural” to qualify as misbranding, which means that the Food and Drug Administration (“FDA”) has little – if any – authority to require that such products be pulled from the market. Practically speaking, Rep. Maloney says that “the FDA doesn’t consider it misbranding for companies to label products as ‘natural,’ even if they contain toxins like coal tar, asbestos, and other harmful chemicals.”

Rep. Maloney’s Natural Cosmetics Act would set a strict definition – for the first time – for when brands can legally use the word “natural” or “naturally-derived ingredient” to define their products. The standard: a product must “contain at least 70 percent natural substances, excluding water” in order to legally bear a “natural” label. More than that, though, the bill requires suppliers to conduct Carbon-14 testing, which they would have to submit to manufacturers in order “to maintain accountability.” Still yet, the pending legislation – if passed – would give the FDA authority to issue a cease distribution orders, public notice on the FDA website, and voluntary recall any product(s) deemed misbranded under the Act.

The brand new bill is already gaining traction on and off of Capitol Hill. Maloney has been joined by fellow New York Representative Grace Meng, who is co-sponsoring, Rep. Harley Rouda of California and Rep. Janice Schakowsky of Illinois. Meanwhile, companies, such as BaboBotanicals, Beautycounter, Biossance, Credo, EO Products, Follain, May Lindstrom Skin, and NakedPoppy, as well as organizations like the National Women’s Health Network have endorsed the proposed legislation.

In terms of the FDA, the government agency has a longstanding policy concerning the use of “natural” in human food labeling, but has steadfastly declines to formally define “natural,” despite its solicitation of public comments  over three years ago. As noted by Seyfarth Shaw LLP’s Tonya Esposito and Renee Appel, the Federal Trade Commission (“FTC”) has also remained relatively quiet on this front, “not acting on the term ‘natural’ since 2016, when it approved four final consent orders against companies that allegedly misrepresented their personal care products as ‘All-Natural’ or ‘100% Natural,’ despite the fact that they contain man-made ingredients.”

This activity by Congressional members, such as Rep. Maloney, is part of a larger movement in which “political leaders are trying to keep up with regulating industry trends while the FDA lags behind,” say Esposito and Appel.

Earlier this year, for instance, California’s state assembly attempted to pass a bill that would strictly limit the sale of cosmetics within the state that contain nearly any of the nearly 20 different chemicals on California’s list of Proposition 65 toxics. The “landmark” bill – called the Toxic-Free Cosmetics Act – was introduced and swiftly put on ice, after deep-pocketed beauty/cosmetics industry groups rallied to prevent its advancement.

As the Los Angeles Times reported this spring, “The state Assembly’s Environment, Safety and Toxic Materials Committee put off a scheduled vote on the Act as it became clear to supporters they didn’t have enough votes to move [it] to the Assembly Health Committee, which was to take up the legislation on April 23.” In other words, “the $70-billion cosmetics industry prevailed over California consumers, succeeding in shelving [the] bill,” the Times’ David Lazarus wrote, thereby, highlighting the glaring takeaway not just for the short-lived Toxic-Free Cosmetics Act but any larger efforts to make meaningful change in the labeling and regulation of cosmetics: the power behind the industry’s giants and their mighty army of lobbyists.

“Like other industries facing similar past challenges, the cosmetics lobby has long fought new regulation and legislation tooth-and-nail,” says Richard Levick, the chairman and CEO of global communications and public affairs firm LEVICK. And it has fought such change by way of the “very generous PACs that many consumer goods companies with large cosmetics divisions run,” according to Stat News, as well as the “hundreds of lobbyists” they keep on board, who maintain “strong ties to both Republicans and Democrats.”

While lobbying spending figures are often kept as tightly under wraps was possible, some figures have been made available. For instance, Market Watch reported that the Personal Care Products Council, alone, spent “an all-time high of $1.86 million [in 2018] on lobbying in Washington, D.C.” The Washington, D.C.-based trade organization – which “serves as the voice on scientific, legal, regulatory, legislative and international issues for the global industry” – boasts members that include Procter & Gamble, L’Oreal USA, Avon, Chanel, Inc., Clarins, Coty, Glossier, and Revlon.

Individually, industry titans like Johnson & Johnson and Procter and Gamble were spending between $7 million and $10 million on lobbying back in 2015, according to the Center for Responsive Politics.

What such large lobbying outfits mean “is that the beauty industry can have someone present in every single congressional office, and in every single meeting with agencies like the FDA,” Andrew Rosenberg, the director of the Center for Science and Democracy at the Union of Concerned Scientists, told Stat. “No non-governmental organization can match that.”

Nonetheless, inactivity by the FDA and/or the FTC might not last long. “Like vaping and CBD, we may see ‘natural’ and ‘clean’ resurface in their priorities because of the safety concerns these marketing terms hold.”