Byline: Joyce Barrett

WASHINGTON — Ted Kennedy is ready to duke it out with the beauty industry.
In a blistering attack on Friday against cosmetics manufacturers, Sen. Kennedy (D., Mass.), said the industry was “underregulated and too often hazardous” and recounted instances of injuries incurred from the use of products such as hair color, mascara and facial peels.
His attack was spurred by a bill now before the Senate, dubbed the Food and Drug Administration Modernization and Accountability Act of 1997, that allows the FDA to levy user fees on pharmaceutical manufacturers to cover the costs of drug safety.
Kennedy is disputing a provision in the bill that would prevent states from requiring warnings on nonprescription drugs and cosmetics, charging that it would preempt state laws governing cosmetics that may be tougher than federal regulations.
The federal government’s authority to approve cosmetics products or review ingredients is limited. The government can’t require companies to register or report cosmetics-related injuries. However, many companies voluntarily do so. Also, the FDA cannot require safety testing and cannot require a product recall.
The Clinton administration is siding with the Massachusetts senator. In a letter sent Friday to Sen. James Jeffords (R., Vt.), chairman of the Senate Labor and Human Resources Committee, Health and Human Services Secretary Donna Shalala warned that she would recommend that President Clinton veto the measure if the preemption provision remains.
In a day-long floor debate on the measure, during which Kennedy frequently raised his voice in indignation and anger, he listed products made by Avon, Estee Lauder, Procter & Gamble, Helene Curtis, America Pride, Clairol, Disney, Great American Cosmetics and Del Laboratories that he said have caused rashes, burns, scarring and disfiguring, damaged eyesight and hair loss. He displayed color photographs of a woman’s face burned by a facial peel.
“We have thousands and thousands of complaints about various products,” he said, noting that eyeliner, eye shadow, lipstick, mascara, hair color, hair spray, baby oil, bubble bath and nail polish have all incited grievances.
He cited instances in which a California girl was burned on her ears and neck by a hair product; a California woman almost died from an allergic reaction to hair dye; a woman had her cornea destroyed by a mascara wand and a woman’s hair caught fire from using “inflammable” hair treatment gel.
Kennedy called the $20 billion industry arrogant in seeking to preempt states from requiring warning labels. “How much do we have to yield to the greed of that industry?” he shouted. “And why should we do it?….What the cosmetics industry is saying to the states is, ‘You’re not going to stick your nose in and protect consumers.’ This industry [has arrogance for] legislators or governors or attorney generals or anyone interested in the public safety.”
Executives at several of the companies mentioned by Kennedy deferred comment to the Cosmetic, Toiletry and Fragrance Association, the industry group.
Mike Petrina, vice president of legislative relations for the CTFA, said that Kennedy “has mounted a total assassination attack on a safe industry based on information that will needlessly alarm the American public.”
Petrina went on to say that Kennedy has “mischaracterized the nature of the FDA authority over cosmetics” and has “raised unfounded and untrue charges of safety.”
“If the FDA hasn’t acted in certain areas, the states are free to issue their own safety regulations,” Petrina added. “The only preemption we’re seeking is for state labeling and warning requirements. It makes sense to have one national labeling law. We aren’t preempting states from acting on safety issues, if the FDA hasn’t done so.”
Kennedy is negotiating with Republican leadership in an attempt to remove the offending provision from the bill. He favors the measure overall, since it gives seriously ill patients access to unapproved new drugs; shortens approval time for drugs for serious or life-threatening diseases; requires the FDA to eliminate by 2000 a backlog of products awaiting approval, and permits health claims on food supplements.
Petrina said, however, that CTFA was negotiating with Kennedy and his staff until late Thursday when the senator’s staff broke off talks.
“They were to deliver us new language, but they decided not to,” Petrina said, adding that the industry was still eager to negotiate new language with Kennedy.
Kennedy has prepared an amendment that would strike the clause, but it’s unlikely he would have much support among his Senate colleagues. In a vote Friday that cut off a filibuster on the FDA bill, only four senators stood with Kennedy against opening debate. They are Senators Daniel Akaka (D., Hawaii), Max Cleland (D., Ga.), Richard Durbin (D., Ill.) and Jack Reed (D., R.I.).
Kennedy does have support in the states, however. The National Governors’ Association, the National Conference of State Legislatures, the California Department of Justice and the Massachusetts attorney general have written Jeffords and Senate Majority Leader Trent Lott (R., Miss.), stating their opposition to the preemption.
Massachusetts Attorney General Scott Harshbarger told Jeffords that the state preemption was “potentially devastating for our citizens.”

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