Congress held hearings about the health hazards of talc. Is regulation next?

On Tuesday, March 12, in Washington, DC, the House Oversight Committee’s Subcommittee on Economic and Consumer Policy decided to focus its first meeting of 2019 on baby powder. Specifically, its aim was to examine the potential health hazards of talc, the stuff that makes baby powder powdery, and whether stricter federal regulation was needed.

The subcommittee’s chair, Rep. Raja Krishnamoorthi (D-IL), told Vox after the hearing that the meeting had been prompted by a number of recent events. There have been reports in the media alleging that Johnson & Johnson had hidden the fact that some of the talc used in its baby powder from the 1970s through 2000 was contaminated with asbestos, multiple lawsuits brought against the company by women with ovarian cancer who had used baby powder on or near their genitals for decades, and the discovery of asbestos in makeup sold at Claire’s and Justice — whose primary consumers are tween and teen girls.

Three people spoke to the subcommittee: Dr. Anne McTiernan, an internal medicine physician and epidemiologist at the Fred Hutchinson Cancer Research Center who has also served as an expert witness in some of the talc cases against Johnson & Johnson; Scott Faber, the vice president of government affairs for the Environmental Working Group (EWG), which has been heavily influential in promoting scrutiny of cosmetics ingredients and urging greater regulation; and Marvin Salter, whose mother, Jacqueline Fox, won a $72 million jury verdict from J&J, only after dying from ovarian cancer. Lawmakers present from both parties seemed to be concerned by their powerful testimonies.

The scrutiny could be the catalyst for longer-term and more meaningful regulation of the cosmetics industry. Bipartisan bills addressing the Food and Drug Administration’s lack of oversight of the beauty industry have languished for several years, but the outrage aimed at Johnson & Johnson specifically and the increased attention on talc generally seems to be galvanizing lawmakers to take concrete action.

Rep. Rashida Tlaib (D-MI), who sits on the subcommittee, spoke to Vox after the hearing.

“This is a new Congress. We not only look different, but we serve differently and we act differently. Most of us have this sense of urgency that I think has been lacking,” she said. “And yes, I think it matters that a lot of us are women, and are women of color, and are at the front lines. It really did open my eyes to something that I need to address personally with my new colleagues and maybe try to push forward. It’s a new day.”

The link between baby powder and asbestos

It all starts with baby powder.

Johnson & Johnson is in the midst of more than 11,000 lawsuits alleging that baby powder usage caused cancers, primarily ovarian cancer and mesothelioma. Juries have awarded plaintiffs huge settlements in talc cases, including almost $4.7 billion to a group of 22 women in July 2018. In December 2018, Reuters published a bombshell story, digging up court documents that suggested that from the 1970s through 2000, Johnson & Johnson hid reports from government agencies that some batches of its talc contained asbestos. The story tanked the company’s stock price. On the basis of various media reports and court documents, the Securities and Exchange Commission and the Justice Department issued subpoenas to the company in February to further investigate.

Johnson & Johnson has always insisted that its products are safe and asbestos-free. It’s unknown whether 100 percent pure talc, which is mined from the earth, is dangerous. What is well known is that asbestos, which sometimes gets commingled with talc during the mining process, causes cancer. The Reuters report suggested that it’s probably “impossible” to completely purify mined talc and definitely impossible to test for asbestos thoroughly and conclusively in all commercial batches.

McTiernan, the epidemiologist, testified at the subcommittee hearing that she had reviewed 38 “high-quality studies” done over the past 40 years. She said, “Data consistently shows that women who had ever used talcum powder products in the genital area had a statistically significant 22 percent to 31 percent increased risk of developing ovarian cancer compared with women who had never used them. … We know from lab and clinical studies that talc can migrate to ovaries and fallopian tubes and that it can cause inflammatory responses in the human body.” She went on to say inflammation is thought to be one contributing factor to the development of cancerous cells.

It’s not clear how much of an exposure is necessary or if talc exposure is causative, but there seems to be at least a correlational link between ovarian cancer and talc usage. While the science is far from conclusive and studies asking people to remember and quantify how they use products over time are not always accurate, it’s still concerning.

Johnson & Johnson provided the following statement to Vox:

Nothing is more important to us than the safety of consumers and maintaining their trust in our products. We have long supported legislation to modernize the US FDA’s regulatory authority over cosmetics and personal care products, and believe this reform is essential to enabling the agency to increase their ability to protect the public. We are committed to continuing to work with Congress and the FDA to advance meaningful change.

As it pertains to the hearing, the testimony was biased with a majority of witnesses being connected to litigation against our company. As a result, decades of studies concluding that Johnson’s Baby Powder is free of asbestos and safe to use were not discussed, and the subcommittee did not hear the preponderance of evidence that supports the safety of our product.

For decades, global independent laboratories and health authorities have tested Johnson’s Baby Powder and have never found asbestos. In 2010, the US FDA surveyed a range of cosmetic products, including Johnson’s Baby Powder and the source talc used in the product, and confirmed that it did not contain asbestos. In a March 5, 2019 statement, the FDA reaffirmed these findings stating the results “found no traces of asbestos contamination using the most sensitive techniques available.”

Salter, who lost his mother to ovarian cancer, testified that she had used baby powder regularly since she was a child. He fought back tears while describing his mother’s treatment and how she died while in the process of pursuing a lawsuit against Johnson & Johnson.

Rep. Ayanna Pressley (D-MA) used her five minutes of time to highlight a memo that J&J had written in the 1990s about targeting people of color in its marketing, calling it “predatory.” J&J has seemingly known a long time that women of color disproportionately used its powder as a feminine hygiene product.

Talc is used in everything from eyeshadow to face powder

Talc is found in many makeup products. In 2017, asbestos was reported in makeup including eyeshadows and face powder, found at both Claire’s and Justice. The FDA subsequently tested products from Claire’s at a separate lab (Justice had recalled its products), which confirmed the contamination.

In a statement published the first week of March, outgoing FDA Commissioner Scott Gottlieb wrote:

The FDA requested that Claire’s recall the products because they should not be used by consumers. Claire’s has refused to comply with the FDA’s request, and the agency does not have authority to mandate a recall. The FDA is therefore warning consumers not to use these products and will continue to communicate our safety concerns about them.

After that report was released, Claire’s recalled the products. (In 2017, the FDA decided to test both raw talc from manufacturers and finished commercial makeup from a variety of brands. It didn’t find any asbestos contamination but noted in its report: “While FDA finds these results informative, they do not prove that most or all talc or talc-containing cosmetic products currently marketed in the United States are likely to be free of asbestos contamination.”)

Tlaib was particularly incensed that Claire’s refused to issue a recall until the FDA called out the retailer on the matter in a public release. She said at the hearing that her constituents shopped at places like Claire’s: “They don’t go to the bougie Macy’s counter — these are targeting working-class people.”

Talc is fairly ubiquitous in makeup at all price points. The EWG’s Faber stated that talc is in at least 2,000 products on the market right now. It’s in higher-end brands like Rihanna’s popular Fenty Beauty foundation and Clinique powder, as well as drugstore brands like Covergirl.

There has been no conclusive link between talc found in makeup and cancer, and the products haven’t been scrutinized publicly the way baby powder has been. Using talc liberally directly on the genitals is a different kind of exposure than dusting it on the face, though it can certainly be inhaled that way. Public health experts recommend no exposure to asbestos at all.

Lawmakers are now more aware that industry regulation is lax

It was clear from the subcommittee hearing that even lawmakers aren’t totally aware of what is within the FDA’s jurisdiction. The EWG’s Faber patiently explained a few times that the FDA has no authority to compel companies to issue recalls or to prove their products are safe. He recommended not to wait “another day to require a warning on all talc-containing cosmetic products.” Tlaib said at the hearing, “It shook me. I honestly thought, ‘FDA’s got it covered, EPA’s got it covered.’”

The cosmetics industry, which includes makeup and baby powder, has been self-regulated for decades. (Read Vox’s full explainer on this issue for more.) In recent years, activists, “clean” beauty brands, and not-for-profits like the EWG have actively been lobbying for new laws to give the FDA more oversight. The bill with the most momentum now is the Personal Care Products Safety Act, introduced by Sen. Dianne Feinstein (D-CA) and co-sponsored by Sen. Susan Collins (R-ME). This talc situation could finally spur reform.

“The next step — and I think we’re probably leaning in this direction — is to open a full-scale investigation by the Oversight Committee into what exactly is going on in the industry,” Rep. Krishnamoorthi, the subcommittee’s chair, told Vox. “We also need to hear in a more formal way exactly how industry members answer the various questions that are out there right now. After that, the committees of jurisdiction can take up the issue of what legislation needs to plug the holes that obviously exist in the regulatory structure that allowed this problem to develop in the first place.”

Asking for regulation from an administration that has been trying to deregulate industries could be an uphill battle, but Krishnamoorthi is optimistic. “I think there’s actually high bipartisan interest in this. Although some members on the other side expressed concern about how regulations might be fashioned to deal with the issues at hand, I did not hear anyone either defend the practices the industry is currently engaged in or say regulation is inappropriate in this particular case.”

Speaking to Vox, Tlaib addressed the Claire’s recall debacle.

“Why do we have to bully them to do the right thing? I know I’ve only been here three months, but if these products actually cause cancer and people are questioning the science and real data out there, it is alarming,” she said. “That’s why I was very clear that corporate greed is the other cancer that puts a lot of our lives in jeopardy and our public health in the back seat.”

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