Detangling the Nexus Between Black Haircare, Public Health, and Clean Beauty Equity

i. introduction

On October 21, 2022, St. Louis resident Jennifer Mitchell filed a mass tort lawsuit in federal court against L’Oreal USA Inc. for the development, marketing, and sale of their chemical hair straightening products, alleging that the use of these products over many years resulted in her diagnosis of uterine cancer in 2018.1 She has asked the court to order L’Oreal to pay compensatory and economic damages for the company’s “complete disregard and reckless indifference for the safety and welfare of the general public.”2 In her complaint, she asserts that L’Oreal “knew or should have known” that the use of toxic chemicals in its products significantly increases health risks, including, but not limited to, the risk of cancer.3

This suit comes on the heels of a recent National Institutes of Health (NIH) study that not only links the chemicals in hair relaxer products to uterine cancer, but also finds that frequent use of chemical hair straightening products doubles the risk of developing these conditions among women who used these products compared with those who did not.4 This finding is particularly alarming for Black women, who report using chemical hair straightening products at an exponentially higher rate than other populations.5 xamining chemical e xposure disparities Through an environmental (and Social) Lens

A hair relaxer is a cream that straightens hair by opening the hair cuticle and penetrating the cortex layers of the hair shaft to loosen the natural curl pattern. Depending on the hair’s growth rate, women usually get relaxer “touch-ups” every six to 10 weeks, thereby creating a beauty regimen that for some may be practiced for decades. In decoding the layered (pardon the hairstyle pun) history of Black haircare over the past century, chemical relaxers have played an integral, and at times, antagonizing, role in how Black womanhood is experienced, expressed, and viewed by other communities.

The discourse about the use of chemical relaxers is often accompanied by discussions of conforming with Eurocentric standards of beauty (which in itself is rooted in racist binaries of desirability and femininity), as well as social pressures of outward appearances in “certain” workplace settings. For many Black women, however, relaxing our hair is not meant to make a political (or non-political) statement, but simply to make our hair more manageable and less time-consuming to style.

But the politicization, legislation6 (and now, litigation) of Black hair cannot be escaped. Increased discussions of self-care and self-acceptance in the last decade or so have resulted in the use of chemical relaxers dipping significantly in recent years.7 This recent L’Oreal suit, however, has sparked a very important discussion not only about how the past long-term use of these products disproportionately impacts Black women’s health, but also highlights the void in American jurisprudence about the lack of inclusive protections regarding consumer health and wellness.

Health effects from chemical exposure is fundamentally an environmental issue. The environmental injustice of beauty emphasizes how intersectional systems of oppression and social factors have influenced racialized beauty practices, which has led to unequal chemical exposures among different populations.

To understand how social and environmental factors jointly influence health disparities caused by cosmetic use, we first evaluate the social and economic dimensions of product use. African American women purchase nine times more beauty products than other groups and disproportionately purchase hair relaxers and straighteners.8 Sociocultural factors, such as colorism and texturism, can often influence product use, which has also led to toxic chemical exposure inequities among Black women compared with other communities. Other drivers of product use differences include place-based determinants (the types of products sold in the purchaser’s neighborhood),9 occupational determinants (exposure to toxic products in the workplace), and cultural determinants (how beauty standards affect which products the purchaser uses).

Secondly, it is important to examine these health disparities within an environmental framework, which requires looking at preexisting institutional vulnerabilities Black women face compared to other groups. One well described example is environmental racism, the disparate impact of environmental hazards and industrial pollution on people of color. This is prominently exemplified by the construction of invasive pipelines, refineries, and landfills, all of which occur notably in African American neighborhoods.10 As expected, these environmental burdens have been tied to a litany of negative health outcomes for residents, including birth defects and cardiovascular disorders. These systemic, harmful environmental factors already disproportionately impact communities of color—but coupling this place-based pollution with elevated beauty product use further highlights the differential vulnerability to health exposures between Black women and other women. In sum, evaluating social factors that may influence beauty product use against cooccurring environmental exposures is imperative to understanding how devasting health outcomes of women like Ms. Mitchell, the woman suing L’Oreal, have come to be. iii. (Lack of) federal c osmetic oversight of chemical Relaxers

One of the primary tenets of environmental justice is toxic equity, a problem that has been perennially enmeshed in the beauty industry. This is illustrated by a number of factors, including the regulatory void on safe beauty products used by Black women, environmental risk factors that disproportionately impact Black women and compound adverse health outcomes (as described above), but primarily—as is the focus of this article—on the haircare and beauty products commonly used by, and marketed to, Black women, notably, chemical relaxers, which are often introduced to us during our formative childhood years.

Garrett Augustus Morgan, an African American tailor, made a chance discovery in 1909 when he found that an alkaline-based chemical used to polish his machine needles also caused the straightening of hair. From this discovery, he patented the first chemical hair straightener, launching “G.A. Morgan Hair Refining Cream,” which was marketed to African American consumers, and would have a transformative impact on Black haircare over the next century.11

After the introduction of chemical relaxers in the early 20th century, the late 1960s and 1970s ushered in a natural haircare movement—contemporaneous with the emergence of the Black Power movement—in which Afros, braids, and locs were sported as powerful political symbols against anti-Black racism. Jheri curls were popularized in the 1980s, and the 1990s introduced the first chemical relaxer product marketed for young Black girls called Just for Me™, resulting in a substantial increase of relaxer use among youth. Getting your first relaxer thereby became a rite of passage in Gen X and Millennial Black girlhood for many of us (including myself), and subsequently became imbedded in our personal care routine for years.

The late 2000s generated a new natural haircare movement through community-based social media platforms and blogs. However, here we are in the early 2020s, now being confronted with the deleterious risks of the continuing use of chemical hair relaxers, which have been supported by a litany of scientific studies and grassroots-based investigations.

As abovementioned, the NIH’s findings were used to support Ms. Mitchell’s L’Oreal complaint. The NIH conducted an 11-year study of 33,497 women, ages 35–74, to identify risk factors for uterine cancer, breast cancer, and other health conditions associated with their longterm use of chemical hair straightening products. During the course of their study, 378 uterine cancer cases were diagnosed.12 Moreover, NIH researchers had also identified links between chemical straighteners and increased risk of ovarian and breast cancers,13 endocrine disruption, asthma,14 and alopecia.15 This clearly illustrates that the use of relaxer is a paramount issue of public health for Black women. It also speaks to a broader concern of the lack of regulatory and legislative protections for Black women within the consumer health space.

It is important to note that government regulation of the cosmetics industry is bare-boned. The most prominent statute is the Federal Food, Drug, and Cosmetic Act (FDCA), introduced by the Food & Drug Administration in 1938, which in part regulates “adulterated” or “misbranded” cosmetics. An “adulterated” cosmetic is one that contains any harmful substance which may be injurious to a user under the conditions of use prescribed in the labeling; moreover, a cosmetic would be deemed “misbranded” if its label is false or misleading, including but not limited to, the name and place of the cosmetic manufacturer and the quantity of contents in terms of weight or measure.16 This statute sounds pro- tective on its face, but it fails to address the regulation of chemicals used specifically in hair relaxers and straighteners.

Another consumer safety statute, the Fair Packaging and Labeling Act (FPLA), which requires all “consumer commodities” (i.e., “personal use” cosmetics) to include ingredient declaration on its labels, would seemingly offer a solution.17 The caveat, however, is that the FPLA does not require the listing of individual fragrances on its labels. This means that potentially cancer-causing ingredients in chemical relaxers would not be listed on a label if they are combined with a fragrance (compounding this problem, most hair relaxers include “fragrance” or phthalates, as a primary ingredient).

The lack of regulatory oversight of chemical relaxers has also generated discourse about the marketing and inclusivity practices of “clean beauty,” a term used to describe cosmetics and skincare products that are free from harmful chemicals. Over the past few years, “clean” beauty has substantially grown more popular, marketing skincare and beauty products with descriptors such as, “eco-friendly,” “sustainably sourced,” and “plant-derived.” Though the intent of the clean beauty movement may seem admirable on the surface, it is incredibly non-inclusive as it fails to market to women of color. It is often promoted (and experienced) through the prism of White, affluent female “influencer” culture, even though women of color, namely Black women, bear the brunt of toxic exposure in beauty products. The “Goopification” of beauty and wellness over the years has greatly exacerbated these marketing disparities, failing to address the needs of diverse populations or ensure that clean products are affordable and accessible to every customer, regardless of race.

Furthermore, there is little to no regulation on clean beauty consumerism, including lack of a definitive definition of what “clean” beauty even is. This is because “clean beauty” is fundamentally a marketing term, and there’s no legal definition for “clean,” “natural,” or “green” beauty products (though the lack of an objective definition has resulted in its own fair share of lawsuits).18

Ultimately, the marketing disparity of clean beauty alternatives, as well as the disparity in which neighborhoods where these products are placed, operate in concert to perpetuate toxic inequities among women of color, immigrant women, and women who are economicallydisadvantaged.19 iv. What c omes next?

There has been no major federal law passed governing the cosmetics industry since the FDCA was first introduced in 1938. Fortunately, there has been growing awareness among lawmakers and corporate leaders of the racialized health outcomes from exposure to harmful chemicals in beauty products. In response to these inequities, the U.S. Congress introduced a suite of bills in its last legislative session, dubbed the “Safer Beauty Bill Package,” whose objective is to modernize cosmetic oversight of beauty and personal care products, proposing the following significant changes to the FDCA:

• Toxic-Free Beauty Act would prohibit the use of 11 hazardous chemicals from beauty and personal care products sold in the U.S., including formaldehyde, paraformaldehyde, and methylene glycol, which are found in hair straightening products.20

• Cosmetic Fragrance and Flavor Right to Know Act of 2021 would require the disclosure of these secret, unlabeled, and often toxic chemicals in our personal care products (this is already required in California), remedying the gap of its legislative grandfather, the FPLA, which does not require the listing of individual fragrances on labels.21

• Cosmetic Supply Chain Transparency Act would require upstream suppliers to provide ingredient disclosures and safety data to cosmetic companies so they can make safer beauty and personal care products.22

• Cosmetic Safety Protections for Communities of Color and Salon Workers Act would defend the health of beauty industry workers (which are predominantly women of color and immigrant women) who disproportionately face occupational health hazards from chemicals in professional cosmetic products and workplace safety standards. This bill, in part, would federally mandate full salon product ingredient disclosure and fund development of green chemistry safer alternatives.23

Though none of these bills have been signed by President Biden as of yet, their introductions demonstrate a long overdue response by our lawmakers to strengthen cosmetic oversight of personal care products that disparately impact the health of Black women.

Putting an end to this toxic reality for Black women requires several important changes: first, brands and retailers must put racial equity as a primary tenet in their clean beauty efforts; second, legislation introduced in 2021–2022 to expand inclusive consumer health and safety protections must garner more robust support for President Biden to sign it; third, the environmental and pollution-based infrastructural issues that compound health disparities among Black women must also be addressed by legislative and public policy leaders; fourth, health professionals should increase their study of beauty product use, specifically its inexplicable link to chemical exposures, and promote policies that include improved ingredient testing and disclosure; and fifth, there must be increased diversity in manufacturing and ownership of beauty retailers.

Within the framework of self-esteem and mental health, haircare is an integral part of wellness, especially for Black women. Our hair defines our cultural identity and allows for self-expression. But in the example of Ms. Mitchell, who has bravely come forward with her suit, our hair has also served as a linchpin of much-needed changes to beauty consumer protections.

The pandemic seismically changed discussions about wellness, emphasiz- ing the importance of practicing good self-stewardship not only for our benefits, but also for those we care about. For wellness, however, to be fully holistic, dimensions of wellness should go beyond the broad lens of “lifestyle” choices—it must also include evaluations of how our environment, institutions of oppression, and public policy play a role in Wellness (capitalization intentional) being equitably accessible.

Anietie Akpan is immediate past editor in chief of The Houston Lawyer.

Endnotes

1. Compl. at 47, Mitchell v. L’Oreal USA, Inc. (N.D. Ill. 2022) (No. 1:22-cv05815). Several other women who have been diagnosed with uterine cancer have also filed suit against cosmetic companies, alleging these devasting health outcomes resulted from long-term use of the companies’ chemical relaxer products. E.g., Gamble v. Strength of Nature Global, LLC (S.D. Ga. 2022) (No. 4:22-cv-00256); Sanders v. L’Oreal USA, Inc. (N.D. Ill. 2022) (No. 1:2022cv07227); Brownlee v. L’Óreal USA, Inc. (W.D. Ohio 2022) (3:22-cv-336). With hair relaxer lawsuits on the rise, the Judicial Panel on Multidistrict Litigation heard oral arguments on January 23, 2023 to determine if these suits – including Ms. Mitchell’s – should be consolidated into a new class action MDL. Notice of Hearing Session, Case MDL No. 2566 (filed Dec. 16, 2022).

2. Compl. at 75, Mitchell v. L’Oreal USA, Inc. (N.D. Ill. 2022) (No. 1:22-cv05815).

3. Id. at 46.

4. News Release, Nat’l Inst. of Health, Hair Straightening Chemicals Associated with Higher Uterine Cancer Risk (Oct. 17, 2022) (on file with author).

5. Becky Sullivan, Hair Straightening Chemicals May Increase Women’s Risk of Uterine Cancer, Study Finds, NPR (Oct. 19, 2022, 5:01 AM), https://www. npr.org/2022/10/19/1129764003/hair-straightening-chemicals-may-increase-womens-risk-of-uterine-cancer-study-fi.

6. E.g., The CROWN Act, S.B. 188, 2019 – 2020 Leg. Sess. (Cal. 2019) (historic law which prohibits discrimination based on hair style and hair texture); see also CROWN Act of 2022, H.R. 2116, 117th Cong. (2021) (proposed bill which would federalize the California CROWN Act).

7. See Relaxer Sales Fall but Black Haircare Market is Booming, Thanks to Natural Hair Movement, FASHION NETWORK (Sept. 20, 2017), https:// ww.fashionnetwork.com/news/Relaxer-sales-fall-but-black-haircare-market-is-booming-thanks-to-natural-hair-movement,870603.html (highlighting consumer study which found that relaxer sales dropped 36.6% between 2012 and 2017).

8. Maia Hoskin, How ‘Inclusive’ Beauty Leaves Black Women Wanting, HEALTHLINE (May 20, 2020), https://www.healthline.com/health/howinclusive-beauty-leaves-black-women-wanting; see News Release, Nat’l Inst. of Health, Hair Straightening Chemicals Associated with Higher Uterine Cancer Risk (Oct. 17, 2022) (on file with author).

9. See e.g., Marcus Biddle, The Historical ‘Messy, Moral Dilemma’ of Marketing Menthol Cigarettes to Black Communities, PBS (June 20, 2022), https:// whyy.org/articles/fda-menthol-ban-history-marketing-menthol-cigarettes-black-communities/ (noting how highly targeted marketing for menthol cigarettes in low-income African American neighborhoods generated a racialized geography of tobacco-related health disparities; targeted marketing of cosmetic products has demonstrated similar racialized health disparities).

10. Hiroko Tabuchi & Nadja Popovich, People of Color Breathe More Hazardous Air. The Sources Are Everywhere., N.Y. TIMES, Apr. 28, 2021, https://www. nytimes.com/2021/04/28/climate/air-pollution-minorities.html.

11. Garrett Morgan, BIOGRAPHY, https://www.biography.com/inventor/garrett-morgan (last updated June 3, 2021).

12. News Release, Nat’l Inst. of Health, Hair Straightening Chemicals Associated with Higher Uterine Cancer Risk (Oct. 17, 2022) (on file with author).

13. News Release, Nat’l Inst. of Health, Permanent Hair Dye and Straighteners May Increase Breast Cancer Risk (Dec. 4, 2019) (on file with author).

14. Jessica S. Helm et al., Measurement of Endocrine Disrupting and Asthma- associated Chemicals in Hair Products Used by Black Women, 165 ENVTL. RES. 448, 449, 454–56 (2018).

15. See SARA ASBECK ET AL., AFRO-ETHNIC HAIRSTYLING TRENDS, RISKS, AND RECOMMENDATIONS, MDPI, 3 (2022), available at file:///C:/Users/Owner/Downloads/cosmetics-09-00017.pdf (highlighting data suggesting a potential association between relaxer use and scarring alopecia).

16. 15 U.S.C. § 361–62; see, The Texas Food, Drug, and Cosmetic Act, state statute which parallels the language in the FDCA. TEX. HEALTH & SAFETY CODE § 431.021.

17. Id. § 1453(a).

18. In contrast with these terms, the term “organic” is regulated, but by the U.S. Department of Agriculture (USDA), not the FDA. If a cosmetic is made up of agricultural ingredients and can meet other regulatory standards, then it could be certified as “organic” under the USDA’s National Organic Program. Cosmetics, Body Care, and Personal Care Products, U.S. DEP’T OF AGRIC., https://www.ams.usda.gov/grades-standards/ cosmetics-body-care-and-personal-care-products?dDocName=STELPR DC5068442 (last visited Dec. 30, 2022); see e.g., Finster v. Sephora USA Inc. (N.D.N.Y. 2022) (No. 6:22-cv-1187) (class action suit against Sephora alleging that a number of cosmetic products tagged “Clean at Sephora” contain synthetic ingredients, including some known to cause skin irritation or allergic reactions).

19. An often forgotten component in the “clean beauty” discussion, is that the use of natural ingredients for health and beauty practices is intrinsically engrained in Black, Indigenous, and People of Color cultures. Rich minerals indigenous to Black and Brown countries, such as marula oil, shea butter, and yerba mate, have been used within these communities for holistic wellness practices. The modern beauty industry, however, has demonstrated a problematic practice of exoticizing these ingredients and repackaging them as “trendy” finds, failing to acknowledge the origins of the ingredients and thereby erasing their rich ancestral significance and historical uses.

20. H.R. 5537, 117th Cong. (2021).

21. H.R. 5538, 117th Cong. (2021).

22. H.R. 5539, 117th Cong. (2021).

23. H.R. 5540, 117th Cong. (2021).

By auguStin rivera, Jr. and nahdiah hoang