Trial Magazine

Sen. Kamala Harris (D-Calif.) recently stated: “Black [women] across the country are facing a health crisis that is driven in part by implicit bias in our health care system.”¹ Over the last few years, members of Congress and health experts have been evaluating the factors contributing to the health crisis facing women of color, who are disproportionately affected by a range of reproductive health and comprehensive care barriers and related adverse maternal health risks and outcomes.²

One important factor continually left out of the conversation is the impact of toxic cosmetics products and the biased marketing of those products. Studies show that the health of women of color is disproportionately impacted by cosmetic products, and socioeconomic status is not a distinguishing factor.³ AAJ and its members have been on the frontline to expose these inconsistencies and ensure access to justice for all women whose health has been endangered by toxic ingredients in cosmetic products.

Much of what the public now knows about asbestos-contaminated talc powder and the increased risk of cancer was brought to light by AAJ members. The American Cancer Society estimates that in 2020, 21,750 women in the United States will be diagnosed with ovarian cancer and that 13,940 women will die from it.⁴ Women of color are particularly at risk because the products sold to them often contain the most harmful ingredients. At least two studies show that products marketed to black women include “highly hazardous” ingredients at a far higher rate than products marketed to the general population.⁵ African American women are disproportionately affected by ovarian cancer as a result of contaminated talc.

In 2016, a University of Virginia study found that African American women who used talc powder for feminine hygiene had more than a 40% increased risk of cancer.⁶ Using talc powder for feminine hygiene is part of a self-care routine for many African American women, passed down from generation to generation. According to a 2015 case-control study conducted in Los Angeles, 44% of African American women use talc powder as part of a feminine hygiene routine, compared to 30% of Caucasian women.⁷

In many instances, companies such as Johnson & Johnson—one of the country’s largest producers of personal care products containing talc—have actively targeted and marketed talc-based products contaminated with asbestos to women of color.⁸

Discovery documents uncovered in litigation against Johnson & Johnson show how the company focused on certain populations. Its marketing efforts stated that the “right place” to target was “under developed geographical areas with hot weather, and higher [African American] population.”⁹ Johnson & Johnson “distributed Baby Powder samples through churches and beauty salons in African American and Hispanic neighborhoods, ran digital and print promotions with weight-loss and wellness company Weight Watchers, and launched a $300,000 radio advertising campaign in a half-dozen markets aimed at reaching ‘curvy Southern women 18–49 skewing African American.’”¹⁰

Not enough people are discussing the impact that the cosmetic industry has on the health of women of color. This could be in part because of the role that women of color play in funding the cosmetic industry: Black consumers spend nearly nine times more than their non-black counterparts on ethnic hair and beauty products, with an estimated $1.1 billion spent annually on beauty items.¹¹ We know that industry downplays the impact of toxic ingredients in cosmetic products and that furthering their profits plays a large role.¹²

Litigation to hold these companies accountable is an important step forward, and AAJ is supporting this fight by advocating for stronger regulation of cosmetic products. As a result of AAJ’s negotiations with the House Committee on Energy and Commerce and interested stakeholders, the “Cosmetic Safety Enhancement Act of 2019” (H.R. 5279) was introduced in December 2019.

The bill is the first meaningful and comprehensive regulatory framework for consumer cosmetic products. It requires minimum warning labels; creates an ingredient review process; and extends mandatory recall authority to the FDA, which would allow the agency to recall products with ingredients hazardous to human health, such as asbestos-containing talc. AAJ is working to sustain bill provisions that ensure consumers can be compensated for their injuries under existing state law. A Senate bill, the “Personal Care Products Safety Act” (S. 726), provides similar protections for consumers while maintaining state tort law remedies.

AAJ is actively working to ensure that cosmetics reform in both chambers sufficiently preserves state laws, allows courts to consider all relevant health and safety information, requires products to have adequate labeling that reflects up-to-date and accurate safety information, and includes a safety assessment that prioritizes human health by addressing the reasonably foreseeable uses of cosmetics.

In addition, AAJ is working to cure an issue with an asbestos ban bill to ensure asbestos-containing cosmetics are covered. Asbestos has been banned in 55 countries around the world but not in the United States,¹³ and any federal legislation passed must do so comprehensively. AAJ Public Affairs advocates for a definition of asbestos that would ban all fibers of asbestos minerals that are harmful to human health, including those found in talc products. If Congress were to approve a different definition of asbestos that does not include the asbestos found in talc powder, it would severely impact the pending cases of thousands of women and men with asbestos-related cancers. AAJ intends to support efforts for final passage of the bill.

AAJ will continue to work with members of Congress, including the Congressional Black Caucus and other stakeholders, to make sure women’s voices are heard and to help resolve the health crisis facing women of color.

Patrick Celestine is AAJ’s federal relations counsel and can be reached at patrick.celestine@justice.org.

Notes

1. Kyung Lah, Kamala Harris Will Reintroduce Bill Tackling Racial Disparities in Maternal Health, CNN (May 22, 2019), https://www.cnn.com/2019/05/22/politics/kamala-harris-racial-disparities-maternal-health-bill/index.html.
2. Nat’l P’ship for Women & Fam., Black Women’s Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities (Apr. 2018), https://www.nationalpartnership.org/our-work/health/reports/black-womens-maternal-health.html.
3. Ami R. Zota & Bhavna Shamasunder, The Environmental Injustice of Beauty: Framing Chemical Exposures From Beauty Products as a Health Disparities Concern, Am. J. Obstetrics & Gynecology (Aug. 15, 2017), https://www.ajog.org/article/S0002-9378(17)30862-1/fulltext.
4. Am. Cancer Soc’y, Key Statistics for Ovarian Cancer (Jan. 8, 2020), https://www.cancer.org/cancer/ovarian-cancer/about/key-statistics.html.
5. Jessica S. Helm et al., Measurement of Endocrine Disrupting and Asthma-Associated Chemicals in Hair Products Used by Black Women, 165 Envtl. Research 448 (2018), www.sciencedirect.com/science/article/pii/S0013935118301518; Paul Pestano, Nneka Leiba & Brit’ny Hawkins, Big Market For Black Cosmetics, But Less Hazardous Choices Limited, Envtl. Working Grp. (Dec. 6, 2016), https://www.ewg.org/research/big-market-black-cosmetics-less-hazardous-choices-limited.
6. Joellen M. Schildkraut et al., Association Between Body Powder Use and Ovarian Cancer: the African American Cancer Epidemiology Study, Cancer Epidemiology, Biomarkers & Prevention (May 2016), https://cebp.aacrjournals.org/content/early/2016/05/12/1055-9965.EPI-15-1281.full-text.pdf. 
7. Ronnie Cohen, Why You Shouldn’t Put Baby Powder Down There, Huffington Post (June 3, 2016) https://www.huffpost.com/entry/talc-linked-to-ovarian-cancer-risk-in-african-american-women_n_5751a1dbe4b0ed593f142915; Anna H. Wu et al., African Americans and Hispanics Remain at Lower Risk of Ovarian Cancer Than Non-Hispanic Whites After Considering Nongenetic Risk Factors and Oophorectomy Rates, Cancer Epidemiology, Biomarkers & Prevention (July 2015), https://cebp.aacrjournals.org/content/24/7/1094#T2.
8. Susan Berfield, Jef Feeley & Margaret Cronin Fisk, Johnson & Johnson Has a Baby Powder Problem, Bloomberg Businessweek (Mar. 31, 2016) https://www.bloomberg.com/features/2016-baby-powder-cancer-lawsuits/. 
9. Chris Kirkham & Lisa Girion, As Worries About Baby Powder’s Safety Mounted, J&J Focused Its Pitches on Minority, Overweight Women, Reuters (Apr. 9, 2019), https://www.reuters.com/investigates/special-report/johnsonandjohnson-marketing/.
10. Id. 
11. Stephenetta Harmon, Black Consumers Spend Nine Times More In Hair & Beauty: Report, Hype Hair (Feb. 26, 2018), https://www.hypehair.com/86642/black-consumers-continue-to-spend-nine-times-more-in-beauty-report/.
12. Lachlan Markay, How the Cosmetics Industry Got to Regulate Itself and Downplayed Cancer Risks, Daily Beast (Mar. 20, 2019), https://www.thedailybeast.com/how-the-cosmetics-industry-got-to-regulate-itself-and-downplayed-cancer-risks; Women’s Voices for the Earth, Cosmetics Companies Hiding Toxic Chemicals (Jan. 29, 2014), https://www.womensvoices.org/avoid-toxic-chemicals/cosmetics/companies-hiding-toxic-chemicals/.
13. Asbestos Nation, Asbestos Bans Around the World, www.asbestosnation.org/facts/asbestos-bans-around-the-world/.