Byline: Carol Emert

WASHINGTON — Edward Kavanaugh is more pessimistic this year than ever about the likelihood of Congress passing important legislation.
“It’s obvious we’re not going to see a whole lot of bipartisan action up there,” said Kavanaugh, president of the Cosmetic, Toiletry and Fragrance Association, during a recent interview in his Washington office.
Gridlock between Republicans and Democrats in Congress is likely to worsen as more and more moderates announce their retirements, Kavanaugh added.
“There’s not going to be that middle group that can bring those two sides together; it’s too polarized,” he said, mentioning Sens. Bill Bradley (D., N.J.) and William Cohen (R., N.H.) as moderates who will be missed.
Another stumbling block is the fall elections, which will likely keep much of the focus on campaigning — at the expense of the matters the CTFA considers its priority. Among these topics are the recycled content in packaging, the Delaney Clause, volatile organic compounds (VOCs) and fragrance sensitivity.
“I think this year will be setting the table for next year, assuming there is still a Republican house next year, which is no longer a given,” Kavanaugh said.
The Delaney Clause, which has been on the books for decades, prevents the use of any substance that has been shown to cause cancer in laboratory animals from being used in health and beauty aids, even if there is consensus in the scientific community that the product is not dangerous to humans.
As a result, U.S. cosmetics manufacturers have only 40 colors to choose from when devising new shades, while the Europeans and Japanese have 100, according to Kavanaugh. Delaney Clause reform, one of the association’s top priorities, went through several legislative permutations last year, ending with Sen. Nancy Kassebaum (R., Kansas) removing it from a Food and Drug Administration bill. Its future at this point is unclear.
The FDA bill is currently in a state of flux, and there is some talk on the Hill of breaking it up into several smaller bills. Repeal of the Delaney Clause “probably won’t happen this year, but maybe next year,” Kavanaugh said.
Meanwhile, the FDA continues to investigate the safety of alpha-hydroxy acids, and Kavanaugh said he expects the agency’s Cosmetic Review Board to propose another round of testing of AHAs this year.
The board appears to be leaning toward a policy of limiting AHA content to about 12 percent or 15 percent for over-the-counter formulas and up to 30 percent or 35 percent for salon products applied by trained cosmetologists.
More concentrated formulas would be available only via prescriptions and would be applied only by physicians.
Earlier industry fears that AHA products would be subject to a premarket approval process have mostly been allayed, Kavanaugh said. “No one on the panel has expressed any real concern about AHAs,” he said. “They’re doctors, they see their patients using them, and they don’t believe it’s a problem.”
The FDA is also planning to revise labeling regulations governing over-the-counter drugs, which would include products that make health-related claims, such as some sunscreens and dandruff shampoos.
The FDA may require such products to list active ingredients on the package front, which the CTFA contends would make health and beauty aids look “more medicinal, like a drug,” according to Kavanaugh.
“I think [the FDA understands] that there is truly a difference between our products and other over-the-counter drugs, but they’ll be asking, ‘Is it worth it to devise a more complicated, two-tier system?”‘ Kavanaugh said.
The FDA is planning to drop the 20-year-old requirement that companies report adverse product reactions by consumers, such as skin irritation. “FDA feels it now has enough information to establish a baseline” so companies can compare the safety of their products against an industry average, Kavanaugh said.
Another priority for Kavanaugh on the federal level is amending the Americans with Disabilities Act (ADA) to state that multiple chemical sensitivity, a condition that apparently makes some consumers highly sensitive to fragrances, is not covered.
Some people with multiple chemical sensitivity have attempted to use the ADA to justify bans on the wearing of perfumes and other scented products in certain locales, such as on university campuses or in municipal buildings, he said.
Currently the city councils of Berkeley and Oakland, Calif., are considering whether to request that people attending council meetings refrain from wearing scented products. Compliance would be completely voluntary, but CTFA opposes the measures anyway on grounds that they demonize fragrances and would create a dangerous precedent. Kavanaugh said CTFA representatives have met with council members, but nothing has been resolved.
Last year, students at the University of Minnesota School of Social Work lobbied for a ban on fragrances on behalf of a department secretary who said she suffers from multiple chemical sensitivity. After meeting with CTFA lawyers, the university issued a statement saying that people were free to wear fragrances on campus.
“This issue either will slowly die out or it’s going to pick up steam,” Kavanaugh said. To push things toward the former, CTFA is helping fund a new organization that acts as a clearing house for research on chemical sensitivity. The Rockville, Md.-based Environmental Sensitivities Research Institute was founded in June using membership fees from CTFA, some of CTFA’s member companies and other chemical-related associations and businesses.
The institute, run by Dr. Ronald Gots, held a two-day seminar about multiple chemical sensitivity at Johns Hopkins University in October, Kavanaugh said.
“We’re trying to educate doctors, psychiatrists and their associations and encourage them to speak out about this,” he said.
On the question of VOCs, the Environmental Protection Agency is expected to soon issue a model VOC regulation for states to use in developing their regulatory schemes. Kavanaugh said he expects virtually all states except for California to adopt the guidelines, which were written with input from the CTFA.
California traditionally has been more active than other states in regulating pollutants. However, under the administration of Republican Gov. Pete Wilson, regulators there seem to be more lax about constraints on businesses — as long as the businesses can show they have made a good-faith effort to comply, Kavanaugh said.
Kavanaugh said he expects California to delay by three years a Jan. 1, 1997, deadline for consumer product manufacturers to reduce their use of VOCs by 55 percent and a 1999 deadline for the elimination of all VOC ingredients.
Kavanaugh said manufacturers have been working hard to reformulate their products, but will be unable to meet the deadlines.
Looking overseas, U.S. beauty manufacturers are preparing for the implementation of the European Cosmetics Directive, which prevents the sale of products that are tested on animals unless the manufacturer can prove no feasible alternative testing method was available.
Products that come into contact with the eyes are the most likely to be impacted, Kavanaugh said.
In Asia, CTFA is working with the governments of South Korea, Thailand and China as they develop regulatory schemes for beauty products. “We don’t want those countries to adopt a system like Japan, where cosmetics are treated like drugs,” Kavanaugh said.
The CTFA will send a report this year detailing problems with Japan’s product approval system, and also its notorious distribution system, which is difficult for outsiders to penetrate.
On a happy note, Kavanaugh said, the CTFA is looking forward to a June dinner to celebrate the 20th anniversary of the Cosmetic Ingredient Review, which provides information about 444 ingredients used in health and beauty aids. The service was used by 28,000 subscribers last year.
And the CTFA’s Look Good Feel Better program, which teaches cosmetic techniques to cancer victims, should get a visibility boost with 28 advertisements that will appear in Conde Nast magazines such as Allure and Vogue this year, Kavanaugh said.

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