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Scrutiny of Nail Salon Chemicals Raises Mass Tort Risk

Recent reports purport to link certain chemicals used in nail salon products to serious health problems such as cancer, asthma, respiratory disease, and miscarriages.  Though past efforts to impose stricter regulations on these chemicals have been largely unsuccessful, a recent slew of New York Times articles have drawn significant attention to the issue.  In response, New York Governor Andrew Cuomo issued a number of emergency regulations to protect salon workers, and New York City mayor Bill de Blasio has announced his own efforts to address the issue.  These responses could indicate a willingness on the part of lawmakers to revisit the laws regulating the cosmetics industry.

The Food, Drug, and Cosmetics Act of 1938, bans harmful chemicals from cosmetics.  The law is over 75 years old and, many believe, outdated.  It does not require FDA preapproval before chemicals are marketed, and does not mandate that chemical companies test the effects of the chemicals.  Nor does the law require cosmetic chemical manufacturers to share safety information with the FDA.  Senators Diane Feinstein (D-CA) and Susan Collins (R-ME) recently introduced a bipartisan bill that would expand FDA oversight of cosmetics.  But critics say that the bill does not go far enough because it allows the cosmetic industry to essentially continue regulating itself.  The bill may also preempt states’ ability to implement stricter regulations.

OSHA has identified at least twelve chemicals it says causes serious health problems for salon workers.  Three of these, dibutyl phthalate, formaldehyde, and toluene, which some have dubbed the “toxic trio,” have been purportedly linked to the most serious problems, such as cancer, lung and kidney failure, birth defects, and miscarriages.  These chemicals have been banned in several countries and, in others, require labels indicating the potential consequences of exposure.  No such rules currently exist in the United States.

 

[S]alon workers can be exposed to levels of chemicals that are legal according to OSHA but are still dangerous . . . .

In response to recent New York Times articles highlighting the working conditions of nail salon employees, Governor Cuomo issued emergency regulations to address the potential health hazards these workers face.  The new rules, which require manicurists to wear gloves and masks and mandate ventilation at salons, are expected to become permanent in the coming months.  NYC Mayor Bill de Blasio has also announced steps to address this issue.  In addition, NYC’s Department of Consumer Affairs has been visiting salons to collect and test products.  The Department indicated it would issue subpoenas to the manufacturers of products labeled free of a certain toxin if the product is found to contain that toxin.  The Department has also started a petition directed at the Personal Care Products Council, the cosmetic chemical industry’s main trade group, to urge its members to stop using ingredients linked to certain ailments.  The agency has sent similar letters to the FDA and OSHA.  David Michaels, the labor secretary who heads OSHA, believes OSHA’s standards are outdated and has said that salon workers can be exposed to levels of chemicals that are legal according to OSHA but are still dangerous to the workers.

The increased regulatory and media focus on the health threats facing salon workers suggests the potential for lawsuits arising from cosmetic chemical exposure.   As in other mass or “toxic tort” claims, salon worker lawsuits may involve a large number of defendants, since workers often use a variety of products made by different manufacturers.  In states that impose strict product liability on anyone in a product’s chain of distribution, nail salon lawsuits may implicate not only manufacturers, but also wholesale and retail distributors of chemical products.  As in other “toxic tort” cases, nail salon lawsuits would likely involve competing expert testimony from toxicologists, industrial hygienists, and epidemiologists regarding a numerous issues not that least of which being general and specific causation.

© 2019 Schiff Hardin LLP

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The Schiff Hardin Product Liability and Mass Torts Group comprises 40 lawyers — in New York, Washington, D.C., Chicago, Atlanta and San Francisco — solely devoted to helping clients face bet-the-company litigation against some of the most well-financed and formidable plaintiffs’ lawyers in the United States. Our lawyers try and win cases in some of the most plaintiff-friendly and inhospitable jurisdictions in the country, and when our clients ask us to create an exit strategy, we are equally adept at negotiating cutting-edge solutions to eliminate product liability and...

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