Colorado Safe Personal Care Products Act

If you live in Colorado you have some looming legislation that comes up for discussion this coming Monday, March 1, 2010. This legislation, in a nutshell, to include formulators of organic or natural soap & cosmetics, has the potential to curtail your ability to operate or sell in the state of Colorado.

Additionally, should this House Bill 10-1248 get passed, this legislation gives individuals in the state of Colorado the ability and license to sue any manufacturer of products that contain ingredients that qualify for banning by the bill. Monday, March 1, 2010 is the day set aside for anyone to dispute this bill, submit arguments why it should not pass, or lobby for a more reasoned approach.

Currently, this HB 10-1248 will ban anything on the EPA list in group 1, 2A, 2B, anything on the NIOSH list as a potential occupational carcinogen, anything on the NTP list as developmentally related to cancer and anything on the International Agency for Cancer Research on cancer groups 1, 2A, 2.

“The bill creates the “Colorado Safe Personal Care Products Act” (act), which prohibits a manufacturer from knowingly selling, offering for sale, or distributing for sale or use in Colorado on and after September 1, 2011, any personal care product that contains a chemical identified as causing cancer or reproductive toxicity.”  HOUSE BILL 10-1248

Link to the Bill in full

The key issues here are “any” and the lack of any safe usage levels for naturally occurring banned ingredients, such as lead in water. If passed as is, Colorado citizens will be the enforcers of the bill, not the state. Rewards upwards of $5,000 and $10,000 per incident will ensure that the cosmetic products and personal care products landscape in Colorado will become the new Wild Wild West, with attorneys being the greatest beneficiary of this legislation. Enforcement will consist of simply sueing the companies that are making products using ingredients that would qualify as banned, that have products for sale in Colorado. This includes products that use many natural essential oils as well as many more perfectly safe cosmetic ingredients, cosmetic colors, etc.

Overview of the situation from Cosmetic Design: http://tinyurl.com/yffy6a5

The Bill sponsors (Betty Boyd at Senate level, and Dianne Primevera at House level) are using bad science, anecdotal evidence (uh, excuse me . . . but as manufacturers of personal care products, we are not allowed to use anecdotal evidence to make claims, so there is irony that anecdotal claims by the sponsors of this bill are being used to demonize personal care products), and mass hysteria to give veracity and traction to the proposed bill. The lack of any standard of evaluation, enforcement, and criteria of usage levels make the passage of this bill a precursor to killing off industry, business development, and many jobs. Right when our economy needs them the most.

Remember, legislators don’t have to be geniuses to get elected, and can propose legislation that is completely out of their depth of knowledge. But, as Thomas Jefferson once said, when government does something that is so intolerable to cause harm to the people it is supposed to protect, it is not just our right to step in and work to stop it, but it is also our DUTY. The Personal Care Products Council will be there on March 1, 2010 to challenge and oppose this bill as it is currently written also.

I’m going to post some information below that both Colorado residents and non residents can use to contact legislators on this matter.

Contact info for you Colorado State Rep:

Betty Boyd is the Senate sponsor
Dianne Primavera is the House sponsor phone 303-866-4667
Dennis Apuan phone 303-866-3069
Karen Middleton phone 303-866-3911
Joe Miklosi Cap phone 303-866-2910

Link to follow and track changes are they are made:
Toggle the selector at the top to the House Bills 1201 - 1250 and then scroll down to 1248

Additional links to learn more
Essential University blog with a great deal more information.
Robert Tisserand discusses how this bill will affect the use of essential oils in your products.

Let me clarify some more issues.

If you live WITHIN the borders of Colorado and this bill passes as proposed:
You will be at risk of anyone living in Colorado suing you if your products have any ingredient that meets the criteria for banning. This bill does not have a ’safe levels’ approach, it is a ‘zero tolerance’ position. The state is not who will enforce this bill. The Federal Government is not who will enforce this bill. This Colorado Safe Personal Care Products House Bill 10-1248 is much tougher than the federal level FD&C Act that currently governs cosmetics in Colorado (they have adopted the Uniform FD&C Act up to this point). It will be ‘hungry’ Colorado citizens and even ‘hungrier/greedy’ lawyers seeing this litigation process as a new revenue stream. The potential cost to the state, companies, and individuals in frivolous lawsuits is huge. Many companies will have to find another state to operate from, and many companies will not be able to ship cosmetics and personal care products into Colorado for sale. Many jobs will go away.

If you live OUTSIDE of Colorado and this bill passes as proposed:
You will not be able to ship any of your personal care products into Colorado if they use FD&C dyes, quite a few essential oils, most flavor oils (even natural ones), and all synthetic fragrances. You will not be able to ship products into Colorado if your products use polysorbates (ethoxylated oil esters, which produce a low residual by product of 1,4 Dioxane). Likewise with most other emulsifiers and many surfactants. Basil, Anise seed oil, Petigrain EO, they contain Methyl Chavicol, or Methyl Eugenol. Cinnamon essential oil, as well as many others, contain safrol.

You get the drift. The risk of litigious exposure, with the fines alone starting in $5,000 to $10,000 range, is too high a risk when the plaintiff (the person filing a suit) does NOT NEED ANY PROOF OTHER THAN YOU HAVE AN INGREDIENT IN YOUR PRODUCT THAT HAS A KNOWN STUDY THAT QUALIFIES FOR BANNING due to any carcinogenic or toxicity.

Why can the State of Colorado do this?
Up until now, Colorado and most states simply adopt the Uniform FD&C Act of the Federal Government. But, any state can have a state level FD&C Act of their own. Our constitution allows each state to govern itself without interference from the Federal government, as long as the state legislation does not conflict with federal legislation and it meets the minimum Federal level standards on the issue. Several states have already enacted FD&C Acts that are tougher than the Federal Govt level FD&C ACT. To name a few:

Kentucky… Extremely difficult to legally operate a home based cosmetic company in Kentucky. Cosmetics are not allowed to be manufactured in the home.
Kentucky Cosmetics Act

PDF on Requirements for Cosmetics (which are the same as for Food)

Mark Reed
manufacturing section supervisor
contact 502-564-7181

Florida…. You legally can not manufacture cosmetics in your home, period. Even opening a base and scenting is interpreted as “manufacturing” in Florida. FL Cosmetics Act

California... finally passed their legislation last year requiring manufacturers of cosmetics and personal care, with gross revenues over 1 million dollars to list all their formula ingredients retroactively for the last 18 mos. The federal level FDA has a Voluntary Cosmetics Registration, but in California it is mandatory if you gross at least one million dollars in personal care sales. The California Cosmetic Act requires manufacturers to list any ingredient that might be a carcinogen also.

Informational Sheet on California Safe Cosmetics Act

California Safe Cosmetics Act

In any case, right now there is nothing under discussion regarding changes to the federal level FD&C Act. But individual state governments are starting to create their own FD&C Acts, often much tougher than Federal Government. Additionally, there is little uniformity from State to State, making this a hodge podge or mish mash of conflicting rules and regulations for manufacturers. This will make it very hard to know where we can ship and sell our personal care products.

If you live in Colorado, I urge you to make your voice heard, and as loudly as you can on this matter. On the face of things, limiting carcinogens and toxic ingredients in our personal care products is an awesome idea. But even water naturally has lead in it, so rather than a zero tolerance on substances, we need a reasoned approach that provides for safe usage levels. Because, quite simply put, it would be impossible to have a zero tolerance.

The rest of us can also voice our opposition based on the idea that if this sort of thing passes in one state, than other states have an easier time getting something similar passed there also. This Colorado Safe Personal Care Product House Bill 10-1248 affects non Colorado residents as much as it affects those that do live in Colorado.

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This entry was posted on Wednesday, February 24th, 2010 at 8:53 am and is filed under Regulatory Info. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

  • annesmith
    I support this because I support life. We shouldn't wait for unwanted circumstances and diseases to happen before we see the facts. Good luck and more power!
  • Natural Grocers by Vitamin Cottage has for many many years researched the safety of the ingredients in the products we sell, whether groceries, vitamins and supplements, or body care and cosmetics products. Our product review committees look at every ingredient in every product before approving it for sale, and those ingredients are checked against our own list of substances we consider detrimental to health. Our standard for safety is higher than GAAS or "Generally Accepted As Safe". We need to know that our products are proven to do no harm. With this in mind, we would like to thank Representative Primavera for bringing to the public's attention a concern that is at the core of our mission to help our customers stay healthy. It would seem natural that Natural Grocers would support the Colorado Safe Personal Care Products Act, since its intent matches our own. However, we cannot support legislation that puts us in jeopardy of opportunistic lawsuits based on unclear, unproven, and unilateral declarations that certain types of ingredients are potentially toxic based on their presence, in any amount, in the personal care products we make or sell. There is no way that Natural Grocers, or the dozens of small Colorado manufacturing businesses we buy from, can comply with the standards set forth in the Colorado Safe Personal Care Products Act. Moreover, it is not clear that even a fully compliant product would prevent an unscrupulous law firm from filing suit in hope of a settlement payoff. Everyone in this room understands that our public budget is woefully underfunded now and for the foreseeable future. However, this unfortunate fact should not be cause for passing a bill that does not include funding for the proper regulatory framework that would create clear, comprehensive rules and policies that, in both principle and practice, protect Colorado consumers and Colorado businesses.
  • Notice it says chemical not ingredient, so if you have 1 part per trillion as a byproduct, you can be sued. Think of what Colorado will smell like with no soap, toothpaste, deodorants, shampoos, etc.

    I say pass this bill and whatch the bountry hunters put everyone out of business. Than a lynch mob will go after these dumb legislators and hang them.
  • Bonnie, this is one of the insidious thing about this bill... the HB 10-1248 wants Colorado to have to adhere to what ever comes and goes on those various lists. What is or is not banned is a 'moving target'. Worse, the legislation references EU laws and regs. Colorado is part of the US, not part of the EU. NO legislation of the United States should be holding US Citizens to regulations of the European Union. The EU has no jurisdiction here, and the US laws no teeth there.

    Here is the info to contact Colorado this morning:

    If you live in Denver or nearby, here is the phone number to call in order to present your own testimony on how the Colorado Safe Personal Care Products Act, HB 10-1248 will damage/destroy your personal care business. Location address for this MONDAY March 1, 2010 at 1:30 PM :

    Colorado State Capital
    Room 0107 (basement)
    200 East Colfax Ave
    Denver, CO
    The telephone number to arrange this is: (303) 866-2604

    Bill Sponsor contact info, including fax numbers (thank you Donna Maria!)
    DIANNE PRIMAVERA: Colorado State Representative, District 33 // phone:
    303-866-4667 // dianne.primavera.house@state.co.us // Fax: 303-866-2218

    BETTY BOYD President Pro Tempore: Colorado State Senator, District 21 // Phone:
    303-866-4857 // betty.boyd.senate@state.co.us /// Fax: 303-866-4543
  • Bonnie
    Hi Kelly------------Is there a list of the banned ingredients from all these agencies
    somewhere or do we have to hunt them up from each agency.
    I have a feeling this will be an all day search project.
    Thank you
    Bonnie G
  • Are these people freaking crazy or just plan stupid and bored. We have an economy that is struggling, jobs are disappearing, and NOW they want to stop manufacturers from selling products by putting their livelihood and their worker's livelihoods at risk. WE are becoming a welfare country. How much more do we have to take.
  • Thank you for posting this great blog. You did such a great job explaining how this bill will not only harm those in Colorado, but also those selling into it. Great thoughful and well researched information.
  • Thanks for posting this Kelly. I also just posted a blog on this at http://sagescript.blogspot.com. A number of things interest me - they are focused only on ‘carcinogens’ with no regard to neurotoxins. There is no regard to dosage or route of administration. Although we think of water as being safe, it is deadly by inhalation. A lot of people might be surprised to find things on the list such as coffee and pickles! Although there may be some help needed in the cosmetic safety field, this bill will not make anything safer but will definitely harm the aesthetic quality of cosmetics.
  • Jennifer Kirkwood
    WOW- this is really something. Even the big companies will have something to worry about.
    What will be able to be sold in Colorado?
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