Abstract

Excerpted From: Lillian White, Carcinogenic Chemicals in Black Hair Products: A Product Liability Issue, 51 Southern University Law Review 305 (Spring, 2024) (191 Footnotes) (Full Document)

“Good hair means curls and waves, bad hair means you look like a slave,” said India Irie in her song “I am Not My Hair.” Sadly, these lyrics are an example of the mindset that most African American great-grandparents and their ancestors were trained to believe centuries ago. “It was difficult for Blacks born and raised in captivity to take pride in their kinky locks.” Consequently, colorism and texturism, discrimination against people with coarse, thick, or kinky hair texture, have continued to flood Black American culture today. As a result, Black people have a history of trying several remedies to remove the kinks from their hair.

Long, straight hair is considered to be the cultural standard for women in America. In the 1960s, “if a woman was unable to attain this look, there was an industry for wigs and hairpieces to accomplish the goal.” The invention of the first chemical hair relaxer in the early 1900s transformed the Black hair industry. Hair care innovation allowed Black women the ability to conform to the European beauty standard of having straighter hair. “Employers also gravitated towards Black women with straight and mainstream hairstyles. Whether a preference or express requirement, many employees communicated to Black women that they must straighten their hair to obtain and keep employment in all types of work environments.”

However, during “the mid-sixties, Black hair underwent its biggest change since Africans arrived in America:” the Black Power movement. The rise of the Black Power movement encouraged African Americans to “show a visible connection to their African ancestors” by wearing their hair in an afro. Today, many African Americans promote natural hair beauty for various reasons. With the passage of the Creating Respectful and Open World for Natural Hair Act (“CROWN Act”), a sense of pride in natural hair has been encouraged. However, a significant number of individuals still use chemical hair relaxers on their hair. There is no right or wrong way to wear Black hair, and this article does not intend to shame individuals who prefer to use a chemical relaxer on their hair. It is the chemical ingredients used in these types of hair products that are manufactured, marketed, and sold to the Black community that deserve scrutiny The United States Food and Drug Administration (“FDA”) regulates cosmetics, which includes hair products. Yet,

“[t]here are only two actions the Federal Food and Drug Administration can take to protect the consumer. Occasionally, they take a contaminated batch of products and ask manufacturers to change their advertising claims. Even if the agency suspects that a cosmetic product causes serious adverse health effects, the agency cannot ask for ingredient information from the manufacturer to determine the formulations or require that the manufacturer provide test data to prove the product['s] safety or efficacy.”

This serious issue affects individuals who apply chemical hair straighteners without full knowledge of the ingredients that their hair absorbs.

Case studies have subsequently revealed a “possible link between hair straightening chemicals and uterine cancer.” Additionally, studies show that some hair maintenance products, such as shampoos, conditioners, and oils, have hazards linked to the ingredients. As a result, cosmetic corporations are flooded with product liability claims. Since the rise of case studies and lawsuits, the FDA has taken steps to notify consumers of the dangers of chemical hair straighteners and hair care products.

This Comment examines cosmetic regulations and the consequences of the regulations. Specifically, an analysis on whether the FDA's new law, Modernization of Cosmetics Regulation Act (“MoCRA”), will mitigate the issue of harmful chemicals found in Black hair products will be conducted. This Comment is written through the eyes of an African American woman that has used chemical hair straighteners for eight years. A critique is the question of why Black hair care production is the main topic of discussion and not all hair products or cosmetics in general. However, this Comment contends that Black people, especially women, deserve the same standard of care when it comes to the production of hair products that they consume. Black women are suffering from hormonal cancers at a much higher rate than women of other races because of the ingredients used in Black hair products.

“About 50 percent of products advertised to Black women contain [endocrine disruptors], compared to maybe only 7 percent that are advertised to white women,” said Dr. Tamarra James-Todd, Ph.D, the Mark and Catherine Winkler Assistant Professor of Environmental Reproductive and Perinatal Epidemiology at Harvard University. “[Black] women who reported using hair relaxers more than twice a year or who used them for more than five years [have] a greater than 50% risk of developing uterine cancer.”

Since the beginning of the Transatlantic Slave Trade, America, as well as many other European countries, have stripped the African diaspora of their self-identity and sense of pride that was reflected in the styles that they wore their hair. Regrettably, many cosmetic manufacturers such as L'Oreal and Revlon have capitalized on the African American community's hair insecurities by disregarding the health risks associated with combining chemicals to create products for Black textured hair.

This Comment will begin with an overview of the history of Black hair care followed by endocrine disrupting chemicals in Black hair products, FDA roles and responsibilities, the law of product liability, and claims against manufacturers. This Comment will address the results of prior product liability actions to show what will be needed to survive current actions against cosmetic manufacturers. Next, a discussion of MoCRA will be held to determine whether the federal government is mitigating the product liability issue. Lastly, this Comment will provide conclusions and recommendations to help ensure MoCRA's success.

[. . .]

Before colonialism, there was no colorism and texturism among Black people. Black Americans did not have the luxury of maintaining their traditional hair routines during Americanenslavement. Still, they were innovative and contributed to many hairstyles and techniques worn and practiced by other ethnicities. Hair has always been crowning glory among Black people, and they have continued to express themselves by the way they wear their hair. Because this hair requires a lot of maintenance, hair products have always been essential to its health and growth. The case studies discussed above show that  the products Black women are consuming cannot be trusted. Therefore, product liability is an issue.

Product liability claims against a cosmetic company like In re Johnson & Johnson will require a Daubert hearing if a party chooses to use expert evidence and testimony to show causation. If a party uses an expert to testify on a company's actions or a company's failure to act like the Monsanto case, then a Daubert hearing will not be necessary. Since more case studies on Black hair product toxicity are underway, courts will have to conduct a Daubert hearing to determine whether each expert has reliable and relevant evidence to prove causation. Courts should consider the likelihood of a fetus being exposed to these cancers in a product liability suit. Banning endocrine disrupting chemicals from hair products would reduce the number of children born to mothers who developed reproductive cancers linked to hair products.

The FDA has begun to take appropriate steps in mitigating the product liability issue through the amendment of the FD&C Act, MoCRA. MoCRA does not entirely resolve the problem because it does not prohibit the use of harmful chemicals that are manufactured in Black hair products. Having support from not only the African American community but also the American populace would further encourage companies to manufacture safer hair products.

Lillian White is a J.D. candidate at Southern University Law Center.