Golden Gate University Law Review


The cosmetic industry’s lack of federal oversight has given rise to concerns regarding consumer safety. Amy Friedman’s story is one example of how the current lack of FDA cosmetic regulation causes actual harm to consumers.26 The current regulatory scheme allows cosmetic companies to operate with little to no government review, leaving consumers vulnerable to potential bad actors. This Comment discusses the problematic effects of the current regulatory framework on the health and safety of consumers, and explores the SCPCPA and its proposed amendments to the FDA’s regulatory authority over cosmetics.

This Comment argues that the SCPCPA is a necessary legislative solution to the current lack of federal cosmetics regulation. Consequently, this Comment argues that the SCPCPA should be re-introduced and passed in order to protect the health and safety of consumers.

Part I begins with a discussion of the FFDCA and the FDA’s limited authority to regulate cosmetics. Part II provides an overview of the proposed SCPCPA bill and its provisions. This section explores how the bill purported to amend the FFDCA by broadening the FDA’s regulatory power over the cosmetics industry. Part III details two instances wherein the lack of federal oversight over cosmetics threatened consumer safety: the WEN incident and a second one involving Johnson & Johnson talcum powder found to be contaminated with asbestos. Lastly, Part IV argues that Congress should enact the SCPCPA because it would provide the FDA with the necessary authority to effectively regulate cosmetics and protect consumers. This section begins by examining the provisions of the SCPCPA in the context of the WEN and Johnson’s incidents, and argues that these incidents could have been prevented or minimized if the FDA had the authority the SCPCPA aimed to provide. To illustrate the feasibility of the SCPCPA provisions, this section then looks to the success of similar provisions in California’s existing cosmetics legislature including the state’s recently enacted Toxic-Free Cosmetics Act. Lastly, this section addresses legislators’ concerns as to federal preemption and the SCPCPA’s effect on small businesses.