Legislation: Update on Advocacy Efforts

On April 20th, Senators Diane Feinstein (CA) and Susan Collins (ME) introduced S. 1014, The Personal Care Products Safety Act. The bill was drafted to update The Food, Drug and Cosmetic Act of 1938 and was intending to give the FDA more funding and oversight over the cosmetic industry.

As many of you know, the HSCG has been involved in legislative advocacy at the Federal level since 2008, when it first became known that Congress was interested in updating the current regulations that govern the cosmetic industry. Since 2010, our association has been under contract with a DC Advocate who acts on our behalf and with us to represent the interests of the handcrafted soap and cosmetic industry. We frequently attend meetings with members of Congress to raise awareness about the HSCG, the industry and the businesses that make it up. At every meeting we try to share samples of handcrafted soap and cosmetics.

In the fall of 2014, we became aware that Senator Feinstein (D-CA) was interested in introducing a bill aimed at updating current cosmetic regulations. We subsequently had numerous in person and phone meetings with staff from both Senators Feinstein and Collins offices to go over the bill language and to provide information on the handcrafted soap and cosmetic industry.

Chairman Vitter sends “Dear Colleague” letter

We have had numerous meetings with the Chair of the Senate Small Business Committee. Chairman Vitter felt so strongly about our issues that he wrote a “Dear Colleague” letter which was sent to the HELP Committee Chairmen, Lamar Alexander and Ranking Member, Patty Murray, as well as to the bill sponsors, Senator Feinstein and Senator Collins. The text of this letter is below (or you can view it here):

 

Dear Chairman Alexander, Ranking Member Murray, Sen. Feinstein, and Sen. Collins:

While I applaud efforts to update The Food, Drug & Cosmetic Act of 1938 to protect consumers and streamline industry compliance, I am concerned that the Personal Care Products Safety Act (S. 1014) does not contain adequate small business protections and would redefine the definition of small businesses unfavorably. This would negatively affect a handmade cosmetic industry comprised largely of women-owned microbusinesses with 1-3 employees. As chairman of the Committee on Small Business and Entrepreneurship, I have the responsibility to ensure that we do not saddle small businesses with unnecessary regulations and requirements that could make an already-challenging regulatory environment even more burdensome.

My primary concern is that the legislation would require every business with more than $100,000 in gross annual sales to register their facility and report their ingredientsto the Food and Drug Administration (FDA). The “facilities” specified in the bill are often in the owner’s personal residence. In addition, businesses with more than $500,000 in gross annual sales would be required to pay the FDA an annual user fee. Both of these requirements are overly burdensome to the approximately 250,000 small business enterprisesthat operate in this market space and employ more than 700,000 people, including 4,081 businesses in Louisiana and 24,593 businesses in California, for example. These small businesses rely on the ability to change and make custom formulationsto stay competitive. Given the great number of small handcrafted cosmetic manufacturers in the United States, this legislation would cause disproportionate harm to the class with less than one percent of the cosmetic market share. Finally, under Section 3 of the Small Business Act, the Small Business Administration (SBA) is tasked with using its expertise and the best available data to establish business size  standards that reflect the differing characteristics of various industries and to consider other factors deemed relevant by the Administrator. Under the most recent SBA size standard guidelines, manufacturers of soap and other detergents are defined as those businesses containing 1,000 or fewer employees. This bill would create ill advised, arbitrary definitions that would cause confusion and harm to small business owners.

For the above-referenced reasons, I oppose this legislation in its current form, and would need to see substantial modifications and improvements to the relevant provisions before agreeing to support it. Thank you for your consideration.

The handcrafted soap and cosmetic industry in the United States is made up of over 300,000 small and emerging businesses in all fifty states. A large portion of these businesses are women-owned and operated and they produce safe soap and cosmetics. The HSCG supports safe cosmetics and helps to educate the membership and the industry n the current regulations governing cosmetics. We feel strongly that any new legislation aimed at updating the current regulations must take into consideration these small and emerging businesses and provide adequate provisions for them to be able to continue to thrive and be assets to their communities and local economies.

Chairman Vitter’s letter and his support of our industry and small businesses is a great stride forward for our legislative advocacy. The HSCG, along with our DC Advocate, Debra Carnahan of Carnahan Global Consulting, will continue to meet with Members of Congress to make them aware of how this legislation, if passed, would adversely affect the small businesses of the handcrafted soap and cosmetic industry.

We will continue to keep you updated on any news; in the meantime, you can visit our page, What We Are Doing, to learn more about the HSCG and advocacy efforts.

FDA Responds to PO Box Petition

In August of 2012, the HSCG wrote a Citizen Petition to the FDA – Department of Health & Human Services, regarding the use of a PO Box in the place of a street address on a cosmetic label.  We did this mainly for the safety of the small businesses that make up the handcrafted soap and cosmetic industry as many of them operate out of their primary residence.   In February of 2013, we received an interim response from FDA stating that they were still reviewing the request and had not reached a decision.  The original petition as well as the supporting documentation can be viewed online at regulations.gov.

In November of 2014, we decided to send in a supplement letter to the petition to update FDA with our new name (the association changed from The Handcrafted Soapmakers Guild to The Handcrafted Soap & Cosmetic Guild in February of 2013) and our significant increase in membership (182% since the first petition).  We again requested that a PO Box be allowed in the place of a street address on a cosmetic label.

We received a final response letter from FDA denying our request to change the current regulation.  You can read the full letter here.

Even though the request was denied and the regulation will not change, there was some clarification on what constitutes a “telephone or city directory”.  You need to pay close attention to this…

Under current regulation, the business name and address (full street address) of the person or business responsible for the product must be on every cosmetic label.  The business address must include the street address, city, state and the ZIP code unless the business is listed in a current city or telephone directory under the business name.  In the response letter from FDA dated November 14, 2014, they defined “city directory or current telephone directory” as both print AND online and that either would satisfy the option under the current regulation if the street address is not listed on a cosmetic label.  They further offer the following examples of acceptable online directories that are “no cost or nominal cost” annually:

What this means for a small handcrafted soap and cosmetic business is that in order to meet the requirement under the regulation, to omit your street address, you would only need to list your business in one of these directories annually.  It would be important to keep the listing up to date with current information.

On the one hand, we were disappointed that a PO Box was not accepted but it was nice to see that the FDA is taking advantage of the non-traditional directory options offered by the internet.  On the whole, this is great news for our industry.

 

 

Legal News: Soap Loaf Trademark

Last week it came to our attention that a private handcrafted soap company had successfully trademarked the term “soap loaf”.

This word mark was published for opposition by the U.S. Patent and Trademark Office on February 5, 3013. The owner has been enforcing the mark on various sites (e.g. eBay) and having handcrafted soapmakers and suppliers that use the term “soap loaf” removed for trademark violation.

Photo credit: southernfried from morguefile.com

The term “soap loaf” is a generic term that has been widely used in the handcrafted soap industry for decades and the trademark of this term creates an issue for the HSCG Members selling products using it. Both soapmaker (also known as handcrafter) and supplier members of the HSCG sell products using “soap loaf”, including both soap and molds, so this has far reaching effects in the industry.

On Monday, September 30, the HSCG Board of Directors made a decision to file a “Petition to Cancel Registration” with the Trademark Trial Appeal Board on behalf of the membership.

While we were in the process of compiling data and preparing our filing with the attorney we received notice that the company had voluntarily canceled the registration of this trademark. It is no longer necessary for the HSCG to take legal action and those of you that were using the term “soap loaf” to sell can now resume doing so without the fear of repercussions.