LEDA at Harvard Law School



Reading Our Lips:

The History of Lipstick Regulation in Western Seats of Power

Sarah Schaffer

Class of 2006

May 19, 2006

This paper is submitted in satisfaction of the Food & Drug Law course requirement in conjunction with the third-year written work requirement. Abstract

This paper traces the history of lipstick’s social and legal regulation in Western seats of power, from Ur circa 3,500 B.C. to the present-day United States. Sliced in this manner, lipstick’s history emerges as heavily cyclical across the Egyptian, Grecian, Roman, Western European, English, and American reigns of power. Examination of both the informal social and formal legal regulation of lipstick throughout these eras reveals that lipstick’s fluctuating signification concerning wearers’ class and gender has always largely determined the extent and types of lipstick regulations that Western societies put in place. Medical and scientific knowledge, however, has also played an important secondary role in lipstick’s regulatory scheme. Thus, lipstick status laws, primarily intended to protect men, long predated laws concerning lipstick safety. Safety laws, in turn, long focused solely on human safety before very recently also branching out into environmental and animal safety. In the future, Western societies should expect to see a continuation of lipstick status regulations, albeit probably informal social ones, as well as increasingly comprehensive lipstick safety regulations regarding human, environmental, and animal well-being.

Ur and Egypt

Historically, one was relatively less likely to die from lipstick than from most other cosmetics products. This does not mean, however, that lipstick has a past lacking in either danger or fascination. Lipstick’s appropriately colorful history began with Queen Schub-ad of ancient Ur.[1] Circa 3,500 B.C.,[2] this Sumerian queen used lip colorant made with a base of white lead and crushed red rocks.[3] The Sumerian people apparently adopted the practice with gusto, as Sir Leonard Woolley’s excavation of Ur’s ‘Royal Cemetery’ revealed that those who could afford to do so had themselves buried with their lip paints stored in cockleshells.[4] Neighboring Assyrians, both women and men, likewise began painting their lips red.[5]

Lipstick culture then reached the burgeoning Egyptian empire, where it continued to primarily denote social status rather than gender. Egyptian men and women boldly applied makeup as part of their daily routine, using, in some form, most of the cosmetic aides ever devised.[6] Eyes had the most cultural importance, and so garnered the most attention, but lips too received color from red ochre, either applied alone or mixed with resin or gum for more lasting finish.[7] Like all Egyptian cosmetics, lip color was concocted at home in brass or wooden makeup kits[8] and perfumed.[9] During the empire’s heyday and twilight years, lip paint increased in importance and sophistication, with its use continuingly unhindered by any form of regulation. Popular color choices included orange, magenta, and blue-black.[10] Red also remained a fashionable option, and, in fact, the use of carmine as a primary red dye in lipstick initially came from Egypt’s 50 B.C. avante garde, such as Cleopatra.[11] In life, it became a social mandate to apply lip paint using wet sticks of wood, and, in death, each well-to-do woman took at least two pots of lip paint to her tomb.[12]

Greece

While Egypt began to decline, Greek culture rose and spread. As would almost all of the Western peoples to follow, these ancient Greeks had a tumultuous relationship with lipstick. Ancient Greece, indeed, provides a case study of several social and legal patterns in lipstick’s history. The social patterns include: lipstick’s shifting cultural signification between social status and femininity, authorities’ backlash against previous rampant reliance on lipstick’s artificial beauty, and a lipstick revival in spite of this leadership disfavor. Early in the Greek empire, most women eschewed all facial makeup, although they did rely on elaborate hair dyes and fake hair.[13] Lip paint became largely the domain of prostitutes, whose red lip color involved both such standard materials as red dye and wine and such extraordinary ingredients as sheep sweat, human saliva, and crocodile excrement.[14] It was in this context of lipstick signaling prostitution that the first known formal regulation of lipstick arose. In what would become a prominent pattern in lipstick regulation, this first lipstick law focused on lipstick’s potential deception of men and undermining of class divides rather than on its safety for women. Under Greek law, prostitutes who appeared in public either at the wrong hours or without their designated lip paint and other makeup could be punished for improperly posing as ladies.[15]

Greece’s neighboring Minoans on Crete and Thera, meanwhile, seemingly retained the more liberal Middle Eastern attitude towards lipstick, as evidenced by wall paintings that “show women with unnaturally red lips.”[16] The Minoans’ “Tyrian dye,” a purplish-red pigment produced from a gland in the murex shellfish, not only colored their famed fabrics, but also their lip and face paints.[17] Whether from these more permissive neighbors or from prostitutes’ enticing example, at some point between700 and 300 B.C., lip color seeped into Classical Greece’s mainstream culture.[18] During this first of many lipstick revivals, Greek art began depicting women handing one another cosmetics articles.[19] Greek tombs from the period contained covered boxes, called pyxides , used for storing cosmetics.[20] Interestingly, as these historical traces suggest, use of lip paint leapt directly from prostitutes and foreigners to the elite; lower class working women continued to avoid makeup.[21] Color for the newly acceptable, and even socially exclusive, lip paint came from vegetable substances such as mulberries and seaweed,[22] from the roots of an alkanet-like plant known as polderos ,[23] and from the considerably less safe vermilion.[24]

Rome

By the time that Greece fell and the Roman Empire got well underway, between 150-31 B.C., lipstick had returned to high popularity and low regulation.[25] Lipstick at this point reverted to demarcating purely social status, not gender, with the color of lip paint that men wore generally indicating their social standing and rank.[26] This is not to suggest that women did not preserve their predominance as lipstick consumers though. Empress Poppaea Sabina, “the crazy wife of the crazy emperor Nero,” retained no less than one-hundred attendants to “maintain her looks and keep her lips painted at all times.”[27] Indeed, most wealthy Roman women had designated, specially-trained makeup and hairstyling slaves, cosmatae , who were overseen by a headmistress of the toilette, the ornatrix .[28] Following Poppaea’s lead, Roman women tended to use a red or purplish lip paint[29] made out of ochre, iron ore, and fucus.[30] Echoing the Sumerian’s use of lead and the Greek’s reliance on vermilion, this Roman enthusiasm for the mercuric plant fucus infused lip paint with a potentially deadly poison; those poor persons who had to rely on red wine sediments for their lip color likely faired better in the end.[31]

Western Europe

Eventually, as the Roman Empire crumbled, Western Europe descended into the Dark Ages,[32] a “shadowy and uncertain time” from which few records of everyday life survive.[33] Most information on lipstick from this period comes from the writings of churchmen, who objected to its usage, although to only moderate effect.[34] As Christianity and bad weather concomitantly took hold, “there was a gradual but distinct shift in favor of a rather plainer, and possibly slightly less washed existence.”[35] The Roman Empire’s fall rendered trade routes precarious, and so also likely hurt cosmetics commerce.[36] However, scraps of documentation from throughout this five-hundred-year period, as well as the continued complaining of religious writers, makes clear that lipstick remained at least relatively in use by females and entirely free from regulation of law.[37] In Spain around 500 A.D., the lower classes frequently wore lip paint.[38] A couple of centuries later in Germany and Britain, orange lip color became widely popular.[39] Beginning in the 800s A.D., crystal cosmetics containers with jeweled lids trickled out from Constantinople, thus suggesting that upper class enthusiasm for cosmetics, likely including lip paints, had returned.[40] Several Irish texts refer to red lips achieved with the help of herbal dyes.[41] Therefore, although interested historians generally identify the Dark Ages with a decline in lipstick use, some lip painting evidently did occur throughout most countries during the period.[42]

Not until the start of the Middle Ages,[43] actually, did religious criticism of lipstick finally gain widespread hold in some countries, most notably England.[44] In England, “a woman who wore make-up was seen as an incarnation of Satan,” because such alteration of her given face challenged God and his workmanship.[45] While this interdiction against lipstick mostly took the form of social rather than legal sanctions, lip tattooing was outright outlawed.[46] Even in England, however, the social proscriptions on lip coloring had their exceptions. Applying a lily or rose tint to one’s lips remained permissible based on those colors’ connotation with purity.[47] Thus, many women would fashion rose lip rouge of sheep fat and mashed up red roots.[48] Moreover, other countries never so fully accepted the idea the piety prohibited lipstick. During the 1200’s A.D. in present-day Italy, lipstick remained an important tool for social demarcation, with high society ladies wearing bright pink lip rouge and lower class women wearing earthy red lip rouge.[49] Then, when the Crusades reintroduced Western Europe to the extensive Middle Eastern use of cosmetics, lipstick acquired a slightly wicked allure.[50] By the 1300s A.D., the rich had alchemists create their lip rouge and apply it while doing incantations.[51] Those with less money would either concoct their own lip rouge or try to buy it from itinerant merchants before the merchants got caught and jailed for witchcraft.[52]

Lipstick’s paradoxical standing as both a popular and shunned item fully developed in the Renaissance period. Courtesans of England, France, Venice, and Milan, whose social position presumably rendered them immune to such confliction, all used lip rouge with abandon.[53] In England, both the women and men of Edward IV’s court wore lip rouge as well.[54] The king himself christened a few official lip rouges, such as “Raw Flesh.”[55] However, peddlers selling lip rouge at rural fairs, and usually playing on crowds’ superstitions to claim that the lip rouges possessed protective power, still risked hanging as sorcerers.[56] Across the Channel in France, upper-class women mostly left lipstick to ‘the other sort of woman.’[57] While, in Italy, ladies continued to wear lip rouge, but with subtlety born of church pressure.[58]

England

1500s

This simultaneously widespread criticism and widespread use of lipstick continued apace in the 1500s A.D.[59] England, which grew increasingly powerful throughout the century, embraced lipstick on the eve of Queen Elizabeth I’s coronation.[60] A lip rouge devotee, Elizabeth usually made her own crimson color with a combination of cochineal, gum Arabic, egg whites, and fig milk.[61] Elizabeth or one of her close associates also appears to have invented the lip pencil, which either she or her servants made by mixing ground alabaster or plaster of Paris with a coloring ingredient, rolling the resultant paste into a crayon shape, and drying it in the sun.[62] Most court ladies imitated the queen in boldly wearing lip rouge, but the majority of women proceeded with more caution.[63] On one hand, the English loved lipstick to the point that it not infrequently served as a cash substitute.[64] Part of this lipstick craze is doubtless attributable to the country’s sharp rise in wealth and the Renaissance zeitgeist of “rediscovery of life, of beauty, form, and colour,” which factors scholars credit with stimulating cosmetics use generally.[65] A substantial part of lipstick’s popularity though, came from the belief that it could work magic, possibly even ward off death.[66] Modern minds might find this faith in lipstick’s health benefits ironic given that ceruse served as a main ingredient in most lip rouges and salves of the period, but few Elizabethans questioned their lip rouge’s power.[67] The queen herself credited lipstick with lifesaving powers, and so, when she fell ill, applied lip rouge increasingly heavily.[68] By her death, Elizabeth had on nearly a half-inch of lip rouge.[69]

On the other hand, however, this belief in lipstick’s magical force caused the cosmetic to provoke the wrath of church and also state. Pictures of devils putting lipstick on women appeared often,[70] and women frequently had to address their lipstick use at confession.[71] One prominent text declared cosmetics usage a mortal sin unless done “to remedy severe disfigurement or so as to be not looked down upon by [one’s] husband.”[72] Such church disapproval alone might not have produced tremendous result. As one historian summarizes the situation: “Despite all of the criticism from men, be they moralists, poets, or husbands, more and more women painted, and their painting was at least tolerated by the public.”[73] When the law stepped in though, with the first formal lipstick regulation since Ancient Greece, women of the lower classes had to take care. Parliament passed a law declaring the use makeup to deceive an Englishman into marriage punishable as witchcraft.[74]

1600s

The 1600s A.D. presented more of the same: a continued siege on lipstick from clergy, ethicists, and occasionally lawmakers, and a continued love affair with lipstick by the English population.[75] During James I’s reign in the early part of the century, lip rouge remained evident but relatively discrete among both upper and lower classes.[76] As so often before, the classes wore different colors of lipstick. This time though, the color distinction was principally, if not solely, based on cost of ingredients. The upper class indulged in a bright cherry red while the lower class stuck with the cheaper ochre red.[77] It warrants note that the upper class also enjoyed safer lip rouge made with a base of ”bear’s grease,” melted down animal fat imported from France, while the lower class continued wearing lip rouge made of the much cheaper ceruse.[78] Even male courtiers employed lip rouge, but, because lipstick remained very much identified with femininity, they also tried to disguise this practice.[79] This female discretion and male secrecy vanished upon the establishment of Charles II’s court. Ladies painted freely, favoring full red lips modeled after previous years’ theatrical makeup.[80] Gentlemen also openly began wearing lip rouge, as the cosmetic’s signaling of femininity and stigma of impropriety had much faded.[81] Since lip and check rouge had yet to include fixatives, this rampant use proved quite messy.[82] The rampant use, levels of rouge and powder unseen for several hundred years prior, also prompted Parliament to consider taking action. A bill introduced to Parliament in 1650, “called for the suppression of ‘the vice of painting, wearing black patches, and the immodest dress of women.’ ”[83] The bill ultimately did not pass, however, due to a majority considering it impracticable.[84]

1700s

Although Parliament’s efforts at ridding the public of lipstick failed in the short term, England did veer away from lipstick in the long run.[85] By the 1700s, wearing lipstick had returned to a surreptitious practice in England, due both to social and to legal penalties. While French ladies wore blatant makeup[86] and scorned the natural look as only for prostitutes, in England nearly opposite norms arose.[87] London prostitutes wore vivid makeup, while young ladies wore almost none, increasing lip rouge usage only upon aging.[88] The older ladies who did wear lip rouge often prepared it themselves – some of the better homes had “still rooms” intended for this purpose – from family or popular recipes.[89] One such popular recipe featured white pomatum, wax, ox’s marrow, and alkanet.[90] Another, called for grinding up roses with hog’s lard, letting it macerate two days, and then melting and straining the mixture, with an infusion of more roses as needed.[91] Gold leaf was also suggested as a nice addition to any lip salve.[92] Of course, some women did not bother with such elaborate concoctions, and simply applied brandy to their lips until they turned red.[93] This reserving of lip rouge for the older, and so presumably married, women moved from social convention to severe black letter law in 1770.[94] Rather than merely discouraging lip rouge through taxation, as done to hair powder,[95] Parliament declared that women who seduced men into matrimony through use of lip and cheek paints could have their marriages annulled as well as face witchcraft charges.[96] Specifically, the legislation declared:

All women of whatever age, rank, profession or degree, whether virgins, maids or widows, that shall, from and after such Act, impose upon, seduce and betray into matrimony any of His Majesty’s subjects, by the scents, paints, cosmetic washes, artificial teeth, false hair, Spanish wool, iron stays, hoops, high-heeled shoes or bolstered hips, shall incur the penalty of the law in force against witchcraft and the like misdemeanours and [their] marriage[s], upon conviction, shall become null and void.[97]

While this law intended only to protect men, it also had the fortuitous consequence of deterring women from the unavoidably public purchasing of shop lip rouges, which lip rouges merchants often adulterated with vermilion.[98] A previous 1724 Act regulating drugs had increased lipstick safety in a similarly incidental manner. Said Act prohibited from London and the surrounding vicinity any medicine or preparation containing certain dangerous ingredients, some of which dangerous ingredients had formerly commonly appeared in lip rouge.[99]

Meanwhile, the American colonies,[100] a continued thorn in England’s side, shifted from following English ambivalence towards lipstick in the 1600s A.D.[101] to emulating French obsession with lipstick in the 1700s A.D.[102] American women achieved reddened lips by most means imaginable, from rubbing red snippets of ribbon across their mouths, to carrying around lemons for sucking on throughout the day, to purchasing Spanish Papers.[103] Bavarian Red Liquor also promised American women red lips, whether rubbed on or drunk. Even Martha Washington had a favorite recipe for lip rouge, which involved: wax, hogs’ lard, spermaceti, alkanet root, almond oil, balsam, raisins, and sugar.[104] Although the American colonies largely rejected England’s attitude towards lipstick, some of them did imitate English laws protecting men from lipstick trickery. In Pennsylvania, for example, a man in the 1700s could have his marriage annulled if his wife had used lip rouge or other cosmetics during the couple’s courtship.[105]

1800s

As the Victorian Age dawned, England’s eighteenth century censure of lipstick swelled into extreme condemnation of it.[106] Some scholars have suggested that a propensity for viewing women as childlike creatures combined with a craze for nature and ‘natural’ beauty propelled this horror of makeup, which represented worldly artifice.[107] Others contend that Victorians’ tendency to view women in commercial terms, with women’s value determined largely by their beauty, prompted the dislike of cosmetics; cosmetics deceived male purchasers into overvaluing women’s worth, and so represented a “particularly pernicious” form of commercial duplicity.[108] For whatever reasons though, social ban on lip rouge reverberated with such force as to render the lack of legal regulation largely moot. Queen Victoria publicly declared makeup “impolite,”[109] and makeup became socially unacceptable for all but prostitutes and actresses.[110] Lipstick, in particular, remained the least respectable of cosmetics throughout the century.[111] Of course, with lipstick, “going out of fashion simply meant going underground.”[112] Women developed a range of strategies for dodging the social prohibition on lip rouge. Many women turned to non-cosmetic methods, such as kissing rosy crepe paper[113] or biting their lips to attain a red color[114] and doing lip calisthenics to achieve the idealized bee-stung shape.[115] Many others turned to all manner of subterfuges. Lip salves used with the excuse of moistening chapped lips actually “cunningly concealed a touch of carmine.”[116] Lip rouges also masqueraded as medicine, with “the medicine makeup quack [finding] a new home on the edge of the medical profession.”[117] Clandestine beauty establishments at which one could buy lip rouge survived based on discretion; women would arrive veiled, get ushered into individual private rooms, and then smuggle their purchases back home for hiding.[118] Women also secretly traded recipes and made lip rouge with their friends in underground lip rouge societies.[119] Finally, the particularly privileged would also sneak off to the more permissive Paris to buy Guerlain’s lip pomade, which involved grapefruit mixed with butter and wax.[120]

All of this furtively continued use of lip rouge eventually started to seep out into the open towards the very end of the century. This relaxation in social lipstick restrictions most often gets credited to actresses who made it into the fringes of society while continuing to wear the makeup that they employed professionally.[121] Continued unabashed use of makeup by high-end prostitutes known as demi-mondaines also likely contributed to lipstick’s eventual resurfacing.[122] Additionally, more cynical scholars propose that lip rouge application became allowable largely because men found it newly expedient to permit such application. According to this theory, men began to quietly encourage cosmetics use in the hopes that a concern for makeup would in turn discourage the even greater evil of female sports and professional pursuits.[123] Whether for genuinely progressive or for more insidious reasons though, by the 1890s older women could tolerably use lip rouge, although unmarried women still could not, except in gatherings of female friends.[124] While most women would still only apply lip rouge in strict secrecy, it did reappear in store windows publicly.[125] That lipstick slowly became more endurable in no way means that lipstick became actually accepted though, as demonstrated by famed actress Sarah Bernhardt causing one of the century’s greatest scandals in the 1880s when she applied red lip rouge in public.[126] Even the wild beauty Lola Montez, mistress of both Franz Liszt and Louis I of Bavaria, apparently felt compelled to in print warn women that lip rouge leads to sure destruction, even though this warning did not correlate particularly well with her own experience.[127]

Thus, overall the English lagged far behind their former American subjects in lipstick use. The first department store makeup counter opened at New York’s B. Altman’s in 1867.[128] That same year, Harriet M. Fish of New York patented a lip and cheek rouge pad colored with carmine, strawberry juice, beet juice, and hollyhock root.[129] Americans’ few previous qualms about lipstick lingered on, but Americans generally plunged ahead in using and developing lip rouge much as they pulled ahead of England in industrialization.[130]

United States

1900-1920

At the turn of the twentieth century, lipstick began to acquire the symbolic and economic standing that it holds today, with rapidly increasing numbers of women using the product impervious to its lack of safety regulations.[131] Lipstick continued to symbolize femininity as it continuously had done for four hundred years prior, but now this symbolism contained a twist. Due to the endorsement of leading suffragettes, lipstick more specifically symbolized female emancipation.[132] Leaders such as Elizabeth Cady Stanton and Charlotte Perkins Gilman trumpeted the wearing of lip rouge as an emblem of women’s emancipation, and incorporated its use into the 1912 New York Suffragette Rally.[133] Thereafter, suffragettes wore a particularly noticeable shade of red lip rouge as part of standard rally procedure.[134] In both America and England, women publicly applied lip rouge with the express intent of appalling men.[135] Lipstick’s long proscription by social, religious, and legal male authority made it a ready symbol for female rebellion.

At the same time though, displaying full, colorful lips for traditional beautification reasons, both via ‘natural’ and cosmetic methods, also continued. Those of a Gibson Girls persuasion would make their lips red and swollen by biting them and sucking on hot cinnamon drops.[136] Women following Baroness d’Orchamps’ advice from the 1907 Tous les Secrets de la Femme would redden their lips by soaking them for five minutes in a glass of warm water, followed by smearing them with camphorated pomade, and finally topping them off with glycerine.[137] Extra adventurous ladies might seek the lipstick tattoos of Gorge Burchett, the most famous tattoo artist in England around 1910.[138] Simultaneously though, cosmetic lip color also continued to advance, facilitated by such developments as the first synthetic carmine.[139] The French company Guerlain introduced the first lip rouge in actual stick form for its aristocratic clients.[140] And, by the eve of the World War I, it had become common to purchase lipstick stored in tinted papers or rolled in paper tubes.[141] During the War, Americans then developed this French innovation further. The first modern tubes of lipstick came out of Waterbury, Connecticut in 1915, when Maurice Levy of the Scovil Manufacturing Company realized that one could mass produce and distribute the popular sticks of lip color by packaging them in a protective metal casing.[142] Levy tubes “were two inches long and had a plain dip-nickel finish,” operating via slide levers on the side of the tubes.[143] Lipstick, as people now called it,[144] still had far to develop though; for example, the common American recipe of crushed insects, beeswax, and olive oil produced lipstick with an unfortunate tendency to turn rancid several hours after application.[145] Locally-produced lipsticks of pigmented powder mixed with butter or lard created similar problems.[146]

No safety laws, federal or state, checked either such preservation problems or the continued use of harmful ingredients in some lipsticks. This lack of regulation did not come from total ignorance of cosmetics’ dangers, for the federal legislature had, as early as 1897, begun trying to pass a major food and drug safety law that would include cosmetics under its auspices.[147] Resistance to cosmetics regulation from the National Pure Food and Drug Congress though, finally forced legislators, in 1900, to drop the bill’s cosmetics provision in order to get it passed.[148] Thus did the Pure Food and Drugs Act of 1906 ultimately fail to include cosmetics under its jurisdiction, “except in an exceedingly remote fashion.”[149] Only when labeled with claims of preventing, mitigating, or curing disease did cosmetics like lipstick become subject to federal regulation.[150] State-level regulations for lipstick safety remained similarly absent, although a couple of states considered limiting lipstick use for other reasons. New York’s Board of Health considered banning lipstick out of concern that it might poison the men who kissed women wearing it.[151] A bill introduced in the Kansas legislature’s 1915 session would have made it a misdemeanor for any woman under age 44 to wear cosmetics if “for the purpose of creating a false impression.”[152]

1920s

This heady environment of increasing lipstick development and use unchecked by any lipstick safety laws only heightened in the years following World War I.[153] Levy’s original push-up lipstick tubes quickly gave way to the swivel lipstick tubes that people know today. In 1923, James Bruce Mason Jr. patented the first swivel lipstick, with the lipstick case bottom featuring a decorative screw head that one turned as the lip color depleted.[154] In the following years, the U.S. Patent Office then issued “upwards of one-hundred patents for different lipstick shapes and dispenser variations.”[155] Among the more extraordinary of these patented ideas came: octagon lipsticks, lipsticks designed to resemble toast popping out of a toaster, and lipsticks whose covers rolled back in imitation of roll-top desks.[156] Devices intended to rearrange women’s mouths into more pleasing shapes, such as a clamp that promised to mold the upper lip into a cupid’s bow, also claimed patents.[157] Not only these peculiarities but also more lasting innovations came out of the 1920s though, such as lip gloss,[158] and the first in a long line of purportedly indelible and waterproof lipsticks.[159] Other debuting options, such as lipsticks that change color upon application[160] and flavored lipsticks,[161] have also remained cyclically trendy to this day. Whether caused by or the cause of these continuing advances in cosmetics technology, lipstick use continued to sharply increase. Approximately fifty million American women used lipstick in the 1920s,[162] enough, according to one prominent advertising agency, to stretch three-thousand miles per year.[163] A new term, the “generation gap,” was even coined in 1925 to describe the disparity between mother and daughter generations’ lipstick use.[164] Cosmetics generally became the United States’ fourth biggest industry after cars, movies, and bootleg liquor.[165]

Reasons for this increasing lipstick use varied widely. Flappers took a page from earlier women’s rights advocates, and wore scarlet lipstick “in a deliberate and, it seems, successful attempt to shock their elders.”[166] Simultaneously, the “New Woman,” a more faithful reincarnation of previous feminists, also adopted lipstick as a badge.[167] Many women also wore lipstick with no such rebellious intent though. Some believed the magazine advertisements’ assurances that lipstick would protect their mouths from sucking in the germs and pollution of ongoing industrialization.[168] Others wished to imitate the color and shape of their favorite movie stars’ mouths, particularly “the Clara Bow Look, the Theda Bara Look, [and] the Mae Murray Look.”[169] These trademark mouths created by Max Factor originated from a movie lighting problem; hot studio lamps caused lip pomade to run, and so Max Factor started using greasepaint foundation to cover their natural outlines of actresses’ mouths and then placed only thumbprints of lipstick at their lips’ centers.[170] When these accidentally developed bow print mouths became tremendously stylish, Max Factor capitalized on their success by selling an eponymous line of cosmetics, which he referred to as “make-up,” thereby further creating cosmetics history.[171]

A smattering of resistance to such lipstick furor remained, else, of course, women would not have worn lipstick as a rebellious gesture. According to one 1923 commentator: “Probably the lip-stick has aroused sharper critical rage than any other whimsicality of women. It can appear to have seized the feminine imagination more violently than any other specific device of fashion.”[172] New Hampshire, whether out of moral or health concerns, unsuccessfully tried to ban the use of all cosmetics in the state.[173] Neither other states nor the federal government issued legal comment on lipstick’s morality or safety.[174] Many lipsticks of the time ranged from uncomfortable, as a result of soap bases,[175] to downright dangerous, as a result of coal tar dyes,[176] but the situation apparently met with no official comment.[177]

1930s

Come the 1930s though, with the types of lipstick products, number of lipstick consumers, and wealth of lipstick producers multiplying in tandem, this regulatory environment shifted dramatically. Now conventional products, such as lip liner[178] and at least allegedly sun-protectant lipstick[179] first appeared during this decade. Several other new products, such as the lipstick stencil for ensuring symmetrical application, also briefly surfaced.[180] In addition to introducing new products, manufacturers rapidly promulgated enhancements to existing products. For example, they developed lipsticks with shinier finishes,[181] heavily perfumed lipsticks so that customers received two products in one,[182] and designed any number of multi-function lipstick cases.[183] These developments met with mass enthusiasm, as documented by the fashion magazine Vogue declaring lipstick a defining item of the twentieth century.[184] A survey of Depression-era households showed that fifty-eight percent of them owned at least one tube of lipstick, compared to fifty-nine percent owning a jar of mustard.[185] Women began applying lipstick more regularly than they brushed their teeth,[186] and the cosmetics industry became one of very few that left the Depression wealthier than when it went in.[187]

For the first time in history, this proliferating lipstick met with an explosion safety regulations, both at the federal and at the state level. On the federal level, political will, women’s lobbying, and cosmetics industry resignation collectively fostered an environment in which safety limitations on cosmetics generally could pass. Several important politicians helped shepherd the first safety regulation of cosmetics, with the powerful President Franklin D. Roosevelt a vital force among them. Shortly after taking office, Roosevelt announced his support for strengthening of the Pure Food and Drug Act of 1906, thereby signaling to agency and congressional actors that renewed efforts to correct the lack of cosmetics regulation could now succeed.[188] One such actor, physician and New York Senator Royal S. Copeland, then pushed the discussion further.[189] Copeland took up the slow battle to regulate cosmetics in 1933 after hearing from the Food and Drug Administration (FDA) that they knew Koremlu, a depilatory cream containing thallium acetate, was poisoning people, but lacked any authority to stop the harm.[190] He introduced, although did not actually read, a bill for entirely replacing the old Pure Food and Drug Act with a new, more stringent food, drug, and cosmetics regulation,[191] which bill became known as the “Tugwell Bill,” after its general sponsor, Assistant Secretary of Agriculture Rexford Guy Tugwell.[192] However, it almost immediately became clear to Copeland that this original bill would not pass, and so he had it revised before reintroducing it in 1934.[193] This second, more moderate bill though, appeased none of the previous objectors and upset consumer groups, and so it too died in committee.[194] A third attempt followed, but continued to meet with resistance and died in committee as had its elder siblings.[195] Finally, the following year, a fourth bill did make it through the Senate Committee on Commerce.[196] Copeland then introduced this fourth bill to the Senate, punctuating his presentation with pictures of the women recently blinded by mascara,[197] and Roosevelt publicly stated his hope that the bill would pass.[198] Thenceforth, the bill bounced back and forth between the Senate and the House for the rest of the 1935 session, with approximately forty significant changes made to it during the process.[199] Ultimately, the House rejected the bill as misallocating power between the FDA and the Federal Trade Commission (FTC),[200] and so the bill died.[201] A fifth bill entered the 1936 session of Congress though, and, after two years of debate and one highly-publicized drug disaster,[202] finally passed as the Food, Drug, and Cosmetic Act.[203] While neither the congressional debates nor the final text of the statute focused on lipstick directly, the Act did dramatically impact lipstick safety due to rules that cosmetics could not contain “poisonous” or “deleterious” substances in such quantities as might render the cosmetics injurious,[204] and cosmetics labeling could not make false or misleading claims.[205] Unlike most provisions of the Act, which did not take effect until one year after the Act’s final presidential approval, these injurious cosmetics provisions went into immediate effect along with the Act’s other two deemed urgent provisions pertaining to poisonous drugs and new drug approval.[206]

Influential throughout this process were women’s lobbying and manufacturers’ lack thereof. Women’s lobbying in favor of food, drug, and cosmetics regulation continuously increased in terms of both numbers and intensity. The coalition of women’s interest groups expanded from the originally active American Home Economics Association and National Congress of Parents and Teachers, which had supported regulation since the original Tugwell Bill, to sixteen national organizations,[207] all “represented at every hearing” and engaged in “quiet steady lobbying.”[208] These groups did not end up entirely delighted with the final Food, Drug, and Cosmetic Act, for reasons such as its failure to mandate ingredients listing on all cosmetics products for direct-to-consumer and professional sale.[209] However, they considered the requirement that government review all coal tar coloring a significant win, despite the exception for hair products.[210] At final evaluation, none of the women’s groups supported the final Act in its entirety, but they did consider it a very respectable start that they could hopefully later strengthen through amendments.[211] While this women’s lobbying went on, the cosmetics industry did not protest, and even qualifiedly supported, federal cosmetics regulation. Such a reversal of previous industry position resulted largely from the growing patchwork of state cosmetics regulations; rather than remain subject to a multitude of state regulations that varied widely in scope and stringency, the cosmetics industry preferred one set of uniform national rules.[212]

Indeed, state regulation of lipstick and other cosmetics sprouted in all directions during the 1930s.[213] Regulation ranged from the strikingly exacting Maine law, to several other strict but more limited state laws, to a range of state imitations of the pending federal legislation. Maine enacted perhaps the most protective law, which compelled manufacturers to register all cosmetics formulas with the State Department of Health.[214] Under the Maine Act for the Regulation of Cosmetics:

No person, firm, corporation or copartnership shall hold for sale, sell, offer for sale, in intrastate commerce, give away, deal in, within this state, supply or apply in the conduct of a beauty shop, barber shop, hairdressing establishment or similar establishment, any cosmetic preparation unless the said preparation has been registered with and a certificate of registration secured from the department of health and welfare.[215]

Registration required paying an initial inspection fee and annual renewal fee, and failure to register or distribution after registration rejection could result in product seizure and fines.[216] Said registration rejection could occur at the Maine Department of Health’s discretion; the Act authorized the health department to refuse certificates of registration to any cosmetics that it judged to contain injurious substances in amounts that could prove poisonous, injurious, or detrimental to a person.[217] Manufacturers, predictably enough, almost immediately challenged the constitutionality of this measure, attempted to have its enforcement temporarily and permanently enjoined.[218] The United States Supreme Court, however, definitively denied these attempts with Bourjois, Inc. v. Chapman .[219] Justice Brandeis, writing for the unanimous majority, summed up the Court’s response to the manufacturer’s constitutional claims with: “Sixteen distinct grounds of invalidity are urged with great earnestness. None is well founded. Only a few need to be discussed.”[220]

Other states also had strict, but piecemeal cosmetics regulations. For example, New Jersey prohibited use of methyl alcohol in cosmetics, Kentucky banned poisonous and dangerous eyebrow and eyelash dyes, and New Hampshire banned the aforesaid dyes as well as lead-based hair dyes.[221] Florida too had something of a cosmetics regulation, insofar as Florida’s Toilet Articles Misbranding Law required that, if the retail seller’s name appeared on a cosmetics label, then the manufacturer’s name and address must appear on the label as well.[222] Such regulations as these did not directly improve lipstick safety, but they did indirectly promote lipstick safety by helping to re-conceptualize cosmetics as regulable items and to impel cosmetics manufacturers to support broad federal regulation as a preferable alternative to the otherwise inevitable state regulation.

Three states, Louisiana, Virginia, and North Dakota, passed comprehensive cosmetics laws that borrowed heavily from differing portions of the pending federal legislation.[223] Louisiana’s Cosmetic Law essentially copied version S.5 of the pending Food, Drug, and Cosmetic Act, and required registration of every cosmetics product.[224] However, for all this registration rigor, Louisiana evidently favored a considerably more moderate approach to cosmetics regulation than did its federal and state contemporaries. Instead of using the registration process to preemptively eliminate poisonous cosmetics, Louisiana used the registration process to ensure merely that cosmetics containing poisons indicated the fact on their labels.[225] Virginia’s Cosmetic Permit Law similarly emulated a draft of the Food, Drug, and Cosmetic Act, complete with a registration process and definitions of adulterated and misbranded cosmetics.[226] Unlike Louisiana though, Virginia intensified the federal model, by not only prohibiting the sale of cosmetics without a permit but also prohibiting the very manufacture of cosmetics by any person not pre-approved by the Virginia Board of Pharmacy.[227] In between these two extremes, North Dakota’s Cosmetic Act most closely resembled the final Food, Drug, and Cosmetic Act provisions, as North Dakota took the final version of the pending federal cosmetics legislation for its model.[228] Given this onslaught of divergent state and dramatic federal regulations, the American 1930s represents among the most important chapters in lipstick’s legal regulatory history. Ironically, despite the moment’s obvious importance now, and all of the political turmoil and public activism that surrounded it even at the time, the first safety regulations of lipstick and other cosmetics slipped by unnoticed by the general populace. One writer of the era exclaimed:

Except in the trade papers, no piece of major legislation [referring to the Food, Drug, and Cosmetic Act] has received less publicity and attention. During the five years the [Food, Drug, and Cosmetic Act] was considered in Congress it was seldom mentioned in the general press, and it has received little attention during the two years that have elapsed since its passage.”[229]

Hence, with the importance of lipstick safety regulation established in the law but not yet embedded in the public conscious, lipstick encountered the 1940s.

1940s

American lipstick production and consumption managed to flourish still further in the eye of World War II. With lipstick by this point firmly established as big business, lipstick producers’ marketing, both in terms of advocating lipstick generally and in terms of promoting individual brands, grew more sophisticated.[230] Manufacturers sold lipstick as not a dishonorable frivolity, but rather a vital part of the war effort; they turned lipstick into a symbol of resilient femininity in the face of danger, a symbol that would boost the morale of both the women wearing the lipstick and the male soldiers who saw such attractive American females.[231] Tangee, still one of America’s biggest lipstick companies at the time, launched a “War, Women, and Lipstick” campaign promoting lipstick as a patriotic instrument of personal morale.[232] Commissioned studies showed make-up an effective morale builder, and so led the U.S. Director of Economic Stabilization to order factory dressing rooms stocked with lipstick to improve female workers’ efficiency.[233] Even the Marines had an official, mandatory “Montezuma Red” lipstick intended to match the trim on women’s hats.[234] As well as selling their theory of lipstick to the public generally, manufacturers also began selling particular brands of lipstick to more narrowly targeted clientele, marketing particular lines of lipstick as appropriate to specific types of women. For example, 1940s marketing executives later explained that they did Maybelline for “not too intelligent girls,” Revlon “for tarts,” and Cover Girl “for the nice girls.”[235]

Such marketing met with high consumption, a consumption likely driven in part by excitement over new products, in part by the escapism that historically characterizes troubled times, and in part by increased assurance of lipstick’s safety. Although the war did force the replacement of metal cases with first plastic cases and then, eventually, paper ones, lipstick generally became only more elaborate and advanced.[236] For example, lipsticks began to come disguised as other objects, such as binoculars, or equipped with accessories, such as emergency flashlights in case of blackout.[237] Gala of London offered a refillable lipstick called “Lipline,” which became popular both sides of the ocean.[238] Max Factor developed the first truly indelible lipstick, in the sense of long-lasting rather than of permanent, titled Tru-Color.[239] Goya introduced the first lip liner in the form of its “Thick and Thin” lipstick, a set of two tubes linked by a chain, with the “thick” tube containing lipstick and the “thin” tube containing a lip pencil for outlining lips.[240] Along with these new or improved varieties of lipstick, there also appeared new playful packaging to entice buyers wishing to escape wartime’s somberness. Some lipsticks opened in novel manners, such as Clairol’s patented lipstick that opened like a switchblade.[241] Many lipsticks received newly playful names, an idea originated by Revlon.[242] And, by the latter half of the decade, Elizabeth Arden had profitably embraced the emphasis on color and novelty packaging by offering matching lipstick and nail polish sets.[243] With all of these product options and packaging styles, and with the Food, Drug, and Cosmetic Act finally in place to monitor their safety,[244] more American women spent more money on lipstick than ever before. In 1941, Americans spent twenty million dollars on lipstick.[245] That figure, by 1946, had crept up to thirty million dollars spent on five-thousand tons of lipstick.[246] Ninety percent of American women wore lipstick.[247]

While consumer focus remained intent upon lipstick, American regulatory focus generally turned elsewhere during the war and its aftermath. The new federal Food, Drug, and Cosmetic Act had just begun taking effect, and so safety improvements did occur in accordance with the Act’s recently passed rules.[248] Almost no new law, safety or social, emerged though, the one exception being a federal luxury tax on lipstick that allowed the government to wrest approximately six million dollars annually from the country’s mass lipstick consumption.[249] Comparing this absence of United States lipstick regulation to the European lipstick regulatory regime perhaps demonstrates the triumph of lipstick producers’ marketing campaign even better than do the sales figures themselves. Whereas America placed no restrictions on lipstick, England passed a Limitations of Supplies order that cut the manufacturing of lipstick and other cosmetics to the bare minimum in order to conserve materials for war purposes.[250] Promptly after the law’s passage, a lipstick black market then sprung up in London.[251] Hitler likewise banned lipstick in Germany, but German women refused to work under such conditions and so forced a relenting of the law.[252]

1950s

With the lipstick industry having successfully re-imagined lipstick as a symbol of devout, conventional femininity, lipstick became a ubiquitous, and even indispensable, item during the 1950s.[253] Statistics from the time show that nearly one-hundred percent of American college girls wore lipstick,[254] and ninety-eight percent of all American women wore lipstick, compared to ninety-six percent that brushed their teeth.[255] Instead of buying just one tube of lipstick coordinated to hair color or complexion, women began buying several lipsticks to coordinate with various outfits.[256] By 1959, Americans spent ninety-three million dollars on buying sixty-two million tubes of lipstick.[257] Such figures mostly result from voluntary lipstick consumption, but some lines of work actually required that women wear lipstick. Airlines followed the marines’ example, and generally considered lipstick part of their flight attendants’ uniform.[258]

Once again, demand and development swelled concurrently. Some genuine product development occurred, with the most important but least acknowledged development concerning a fidgeting with lipstick formulas in order to improve comfort. Manufacturers reduced lipstick’s levels of carnuba and beeswax by about ten percent, and also reduced the level of bromo acids to avoid drying out the lips.[259] However, such backstage maneuvers received much less attention than did more visible changes, such as the popular new shimmering lipsticks.[260] Of course, few consumers realized that this shimmer came from guanine, a crystalline substance in fish scales, guano, and other animal excrements.[261] White lipsticks first appeared as well, with the white gleam coming from the addition of titanium.[262] Liquid lipstick also surfaced as a ‘modern’ offering, its links to the original forms of lipstick either forgotten or conveniently forgotten.[263] Most development involved marketing though.[264] The single most important marketing advance involved the discovery of the “teenager,” which discovery led to a proliferation of girlishly named lipsticks targeting teens.[265] However, there also arose new marketing tactics designed to boost the spending of all ages. Estee Lauder introduced the first free sample and gift with purchase, giving away miniature lipsticks, rouges, eye shadows, and face creams despite competitors’ derisive comments about the business strategy of giving away the store.[266] Revlon decided to start bringing out lipstick shades every six months rather than annually, so that women would think of lipstick as a shorter-lived product and buy it more frequently.[267] It was Revlon too that launched the most famous lipstick advertising campaign of the decade, a campaign entitled “Fire & Ice” that first ran in 1952 with a two-page, full-color spread featuring model Dorian Leigh on the first page and fifteen questions designed to “test” whether the reader’s personality suited Revlon products on the second page.[268] In fact, lipstick became such a heavily marketed, fiercely competitive business, that a period known as the “lipstick wars” began.[269] Cosmetics companies attempted to destroy one another via such methods as sending thugs into stores to destroy competitors’ lipstick displays, attempting to steal competitors’ formulas, and bugging staff telephones.[270] Scandals abounded both regarding these ongoing wars and regarding marketing ploys, with the loudest commotion involving Revlon’s implication in rigging the television show “The $64,000 Question.”[271]

Whether because political attention could shift from war abroad to domestic matters, or because scientific advances led to better understanding cosmetics’ risks, or because lipstick had become a respectable product used by all proper women, federal and state interest lipstick regulation revived. At the state level, twenty nine states adopted the Uniform State Food, Drug, and Cosmetic Bill, a piece of legislation closely patterned after the Food, Drug, and Cosmetic Act.[272] At the federal level, a regulatory surge, in terms of both enforcement and enactment, also occurred. Unlike in the original 1930s skirmish over cosmetics regulations, the FTC actually participated in rather than resisted this 1950s regulatory charge.[273] In 1953, the FTC decided to battle lipstick manufacturers’ misleading claims, and declared that lipsticks could no longer claim themselves “indelible,” “smear proof,” or “non-smear.”[274] Instead, cosmetics companies could only promote lipsticks as “longer lasting” or “less likely to smear.”[275] The FDA largely left such enforcement battles to the FTC, perhaps in part due to the FDA’s early lack of success in its own misbranding actions.[276] Indeed though, the FDA almost entirely ignored lipstick and other cosmetics during the 1950s, deeming their dangers far secondary to the lethality risks of food and drugs.[277] Congress, however, had other views of the risks, specifically the cancer risks of colorants.

Congress passed two cosmetics-relevant amendments to the Food, Drug, and Cosmetic Act, the Food Additives Amendment and the Color Additives Amendment. First, representative James D. Delaney, “the primary congressional champion of the battle against cancer,” inserted into a food additives bill a zero-tolerance clause for the use of carcinogenic additives in either processed foods or cosmetics.[278] Although the additives bill had previously not implicated cosmetics, the 1957 addition of this “Delaney Amendment” occasioned relatively little congressional debate.[279] The Secretary of Health Education and Welfare[280] did object to the Delaney Clause as excessive though, because the general chemical additives provisions already covered reasonable risks of cancer and because the Delaney Clause’s provisions:

...are so broadly phrased that they could be read to bar an additive from the food supply even if it [the additive] can induce cancer only when used on test animals in a way having no bearing on the question of carcinogenicity for its [the additive’s] intended use.[281]

These objections managed to get the food additives bill reported out of committee, without the Delaney language, but Delaney quickly convinced the general assembly to reinsert the language.[282] Responding, the Assistant Secretary of Health Education and Welfare wrote a long letter insisting on the agency’s opposition to the Delaney Clause, but also adding that, in the interest of passing the bill, the department would withdraw its objection to the Clause if revised to state that banning additives as cancerous required completing tests appropriate to evaluate the additives’ safety as used in food.[283] Accepting the compromise, Congress incorporated the revised ‘appropriate tests’ language into the bill, and in 1958 passed the Food Additives Amendment in a subsection stating:

Provided, That no additive shall be deemed to be safe if it is found to induce cancer when ingested by man or animal, or if it is found, after tests which are appropriate for the evaluation of the safety of food additives, to induce cancer in man or animal, except that this proviso shall not apply with respect to the use of a substance as an ingredient of feed for animals which are raised for food production, if the Secretary finds (i) that, under the conditions of use and feeding specified in proposed labeling and reasonably certain to be followed in practice, such additive will not adversely affect the animals for which such feed is intended, and (ii) that no residue of the additive will be found (by methods of examination prescribed or approved by the Secretary by regulations, which regulations shall not be subject to subsections (f) and (g)) in any edible portion of such animal after slaughter or in any food yielded by or derived from the living animal.[284]

It bears note that the law did not take quite so extreme an approach as the above-quoted text suggests, for the law included a grandfather clause exempting any substances that had already received regulatory approval under the Food, Drug, and Cosmetic Act or the Federal Meat Inspection Act of 1907.[285] However, the law still did impose an absolute ban on additives, including colorants used in cosmetics, if appropriate tests revealed the additives to produce any risk of cancer in humans or animals.[286]

Moreover, Congress also passed a second law that further restricted the use of specifically color additives in both food and cosmetics. With the FDA’s ungrudging support this time, Congress went on to construct the first and only federal pre-market approval requirement for cosmetics.[287] Under the Color Additive Amendment, as ultimately passed in 1960:

A color additive shall, with respect to any particular use (for which it is being used or intended to be used or is represented as suitable) in or on food or drugs or devices or cosmetics, be deemed unsafe... unless: (A) there is in effect, and such additive and such use are in conformity with, an [FDA] regulation... listing such additive for such use, including any provision of such regulation prescribing the conditions under which such additive may be safely used, and (B) such additive either is from a batch certified, in accordance with [FDA] regulations... for such use, or has, with respect to such use, been exempted by the Secretary [of Health Education and Welfare] from the requirement of certification; or such additive and such use thereof conform to the terms of an [investigational use by qualified experts] exemption...[288]

Put in plain English, this language prohibits cosmetics companies from using any color additive unless the FDA has listed that additive as approved for the given use, and that additive comes from a batch certified for use.[289] How the FDA decides which colorants to list as approved was also specifically mandated by the legislation, with the Delaney Clause resurfacing as an element of the approval test. Specifically, in determining a color additive’s safety:

... the Secretary shall consider, among other relevant factors: (i) the probable consumption of, or other relevant exposure from, the additive and of any substance formed in or on food, drugs or devices, or cosmetics because of the use of the additive, (ii) the cumulative effect... of such additive in the diet of man or animals, taking into account the same or any chemically or pharmacologically related substance or substances in such diet, (iii) safety factors which, in the opinion of [qualified] experts... are generally recognized as appropriate for the use of animal experimentation data, and (iv) the availability of any needed practicable methods of analysis for determining the identity and quantity of the pure dye and all intermediates and other impurities contained in such color additive, such additive in or on any article of food, drug or device, or cosmetic, and any substance formed in or on such article because of the use of such additive. A color additive shall be unsafe, and shall not be listed, for any use which will or may result in ingestion of all or part of such additive, if the additive is found by the Secretary to induce cancer when ingested by man or animal, or if it is found by the Secretary, after tests which are appropriate for the evaluation of the safety of additives for use in food, to induce cancer in man or animal, and shall be deemed unsafe, and shall not be listed, for any use which will not result in ingestion of any part of such additive, if, after tests which are appropriate for the evaluation of the safety of additives for such use, or after other relevant exposure of man or animal to such additive, it is found by the Secretary to induce cancer in man or animal.[290]

This language creates a situation in which colorants, like other additives, must not pose any risk of cancer. But also, unlike in the case of other additives, the FDA must prescreen all colorants for a risk of cancer and other harms before manufacturers can incorporate the colorants into any product.[291] Given lipstick’s obvious reliance on colorants, this new color additives law meant another sizeable bump up in lipstick’s regulatory obligations.[292] Thus, by the end of the 1950s, almost all women used lipstick, a majority of the states had laws regulating lipstick, and the federal laws applicable to lipstick had become both more strictly enforced and just plain stricter.

1960s

Following several decades of extensive lipstick developments, the 1960s brought a lull in lipstick’s societal, technological, and legal evolution. Tumult that swept up most established institutions and conventions left lipstick relatively untouched as an accepted emblem of femininity. Similarly, lipstick’s technological aspects experienced tweaking but no dramatic overhauls. The late-1950s phenomena of white and beige lipsticks increased in popularity to become best sellers.[293] Correlated to these colors’ popularity, an aspiration to wear lipstick but look as if one was not wearing lipstick posed probably the decade’s most noteworthy change and complicated challenge for manufacturers, who invented complex formulas to produce lipsticks with the effect.[294] For all the manufacturers’ efforts though, one of the most popular ‘lipsticks’ remained a product intended as a concealer, called “Erase.”[295] The countervailing trend of over-painting the upper lip to create a permanent smile, however, ensured that lipstick business remained solid.[296] Such over-painted mouths often featured the glittery, frosted colors whose 1950s popularity endured, but with the improvement of mica, iron oxides, and titanium dioxide replacing excrement and fish scales as the standard source of these colors’ sparkle.[297] Building off of these glitzy predecessors, heavier metallics, particularly in the Helena Rubinstein line, also became trendy.[298] Other momentary trends included a 1964 caramel-flavored lipstick[299] and a fad for lipstick made with or simulating baby product ingredients.[300] In terms of lipstick ideas with historic purpose though, only one stands out; manufacturers improved the coloring process by using the spectrophotometer to develop new color combinations and precisely calibrate color batches.[301] The 1960s major advance involved the lipstick industry’s increasing recognition of the need to treat lipstick production as an exact scientific process.[302]

This realization came none too soon, as the Food and Color Additive Amendments went into effect and forced lipstick manufacturers to take more care with ingredients than ever before. Almost two hundred colors went into cosmetics during the 1950s, but this number began rapidly declining during the 1960s towards the current level of thirty-four permissible colors.[303] Although lipstick experienced virtually no legal developments in terms of new laws, federal lipstick jurisprudence yet remained a dynamic field, with the FDA and cosmetics industry struggling to interpret and implement the recent additives regulations. Interpretation of the Color Additive Amendment provoked the greatest fights between the FDA and industry, particularly on three sub-issues. First, the FDA interpreted the Color Additive Amendment to allow for defining lipstick and other finished cosmetics as color additives, and so duly issued a regulation defining finished cosmetics as a color additive.[304] As this regulation meant that cosmetics companies needed to get every lipstick pre-approved before sale, the industry naturally challenged the regulation. And, in Toilet Goods Ass’n., Inc. v. Finch , the cosmetics industry[305] succeeded in this challenge.[306] The Second Circuit Court of Appeals ruled that the FDA had exceeded its statutory authority in regulating lipstick and other finished cosmetics as color additives, because: (1) the Color Additives Amendment shows no sign that Congress intended pre-market approval for cosmetics, (2) given that the Color Additive Amendment applies equally to food, drugs, and cosmetics, it amounts to unreasonable differential treatment to regulate cosmetics with colorants in one manner while regulating food and drugs with the same colorants in an entirely different manner,[307] and (3) defining finished cosmetics products as color additives would frustrate the Color Additive Amendment’s underlying “safe for use” principle.[308] Secondly, the FDA also issued a regulation defining diluents, components intentionally mixed with color additives in order to facilitate the color additives’ use in food, drugs, or cosmetics like lipstick, as color additives.[309] This too the cosmetics industry successfully contested. The Finch appellate court left intact the ruling of the Toilet Goods Ass’n, Inc. v. Gardner lower court,[310] which held that diluents cannot constitute color additives, because: (1) this would contradict the plain meaning of the Color Additive Amendment’s and Food, Drug, and Cosmetic Act’s terminology, (2) simultaneous to passing this Amendment, Congress made changes to the Act’s section regulating diluents, which changes did not include authorizing pre-market clearance procedures for diluents, and (3) the Amendment’s legislative history includes deliberate rejection of premarket approval requirements for ingredients other than color additives [311] Third and finally, the FDA put forth a regulation announcing that it could suspend the availability of cosmetics certification proceedings to manufacturers who refused FDA inspectors access to manufacturing facilities, processes, and formulae involved in the manufacture of additives.[312] Contrasting the fates of other regulations, this regulation survived challenge by the cosmetics industry. After the Second and Third Circuits split on how to treat the regulation,[313] the Supreme Court accepted cert and denied the industry’s request for pre-enforcement declaratory and injunctive relief on the grounds that the controversy had not come ripe for adjudication.[314] Without the FDA having ever yet enforced the regulation, the Court could not know whether or when the Commissioner would order an inspection under the regulation, and for what reasons.[315] Furthermore, the Court considered that no irreparable harm to manufacturers would result from not judicially determining the regulation’s validity until an actual case of enforcement under the regulation arose.[316]

Implementation of the Food and Color Additives Amendments had similarly high stakes, for it involved the banning of many colors upon which the cosmetics industry had previously depended. However, the process provoked relatively fewer legal battles, because the Amendments’ unequivocal language left little leeway for evading the delisting duties, and because the FDA resisted the delisting of colors almost as much as the cosmetics industry did.[317] Since the Color Additive Amendment made clear that no color could appear in products until affirmative proof of the color’s safety had been established, and since cosmetics companies had to themselves pay for this FDA safety testing, many colors ended up delisted not because the colors actually posed any danger, but simply because companies deemed it not worth doing expensive tests on multiple similar shades.[318] In such manner did Reds Nos. 10, 11, and 13 get delisted apparently without argument.[319] Court cases on color delistings would come, as the FDA’s and cosmetic industry’s thorny relationship continued, but not until the following decade.

1970s

In this climate did the 1970s arrive, attendant with a jumble of shifts in lipstick’s social connotation as well as continued federal regulatory maneuvers. Looking at lipstick from a social perspective, people spent the 1970s busily rebelling both with and against lipstick, and product developments catered to each of these divergent rebellions in turn. As it had so often before, lipstick became a symbol of social rebellion, adopted by both sexes of the punk-rock music and cultural movement to express sex, violence, and general nonconformity.[320] Purple and black became the most popular colors due to this contingent.[321] Later in the decade, the disco style, yet another fashion originating from the music scene, also relied on lipstick for its deliberately provocative look. Celebrity makeup artist Way Bandy’s ‘boogie-nights face’ revolved around the deep, glossy red lips that now epitomize many people’s conception of the 1970s.[322] When lipstick bullets themselves developed a gleaming finish, standard today but entirely new back then, it likely seemed a bold complement to these bold looks. Whether by coincidence or considered effort, just at the time that musically-inspired looks began to favor dark and shiny lipstick as a symbol of their rebellion, manufacturers began flaming their lipsticks; that is, manufacturers sent finished tubes of lipstick through flames at high speed, so that the lipsticks’ outer wax coats would melt and then re-solidify as a shiny shells.[323]

On the polar opposite hand, however, feminists rebelled by not wearing lipstick. Doing an about-face from the previous wave of feminism, 1970s feminists protested not with but against lipstick, condemning the commercialized beauty business as degrading to women.[324] Feminists’ staunchly no-makeup look little disturbed cosmetics manufacturers though, as they had spent the previous ten to fifteen years wrestling an aesthetically-motivated no-makeup look.[325] By the time that the 1970s rolled around, cosmetics manufacturers had long since regrouped against anti-makeup impulses with ‘natural look’ makeup, which product lines they then simply repositioned as “celebrating the liberated woman.”[326] Cosmetics manufacturers likewise did not suffer too badly from the growing ‘New Age’ enthusiasm for ‘natural’ products. To some extent, this trend cost the cosmetics industry business, as potential lipstick customers opted for alternative measures, like staining their lips with raspberry juice.[327] In substantial part though, cosmetics companies could adequately meet the craze for ‘natural’ products with product enhancements or marketing gimmicks, depending upon one’s perspective. Lipstick producers responses to New Age movement demands included: plant extracts showing up in lipstick ingredients,[328] formulas named and flavored like natural products,[329] and advertising emphasis on lipsticks’ medicinal attributes.[330]

Looking at the 1970s lipstick world from a regulatory perspective a similar number of contrary forces came into play. Previously seen skirmishes over color additives continued, additional conflicts over ingredient labeling developed, and, at the same time, a quivering partnership between the FDA and the Cosmetic Toiletry and Perfumery Association (CTFA) materialized. Delisting of lipstick colorants continued to occur, again apparently without much argument, until the FDA delisted Red No. 2.[331] The FDA banned[332] Red No. 2 on the basis of a Russian study’s finding that the basic compound in Red No. 2, amaranth, caused cancer.[333] This Russian study did not provide particularly reliable data, as the study involved a crude version of Red No. 2 different than that used in the United States.[334] When the FDA tried duplicating the Russian study though, its lab mixed up the test rats and so ended up with no verifiable results.[335] And, the cosmetics industry refused the FDA’s command that the industry undertake a study of the color itself, deeming the undertaking some combination of too expensive and too silly.[336] So, the FDA ultimately terminated Red No. 2’s provisional listing solely based on Russia’s study. A legal challenge of this termination, Certified Color Mfrs. Ass’n v. Mathews , resulted in summary judgment upholding the FDA’s decision, because the FDA had a rational basis[337] for delisting once there existed a suggestion of carcinogenicity and the subsequent principal study under review could offer no contravening finding of safety.[338] In such manner did the United States become the only country that does not allow use of Red No. 2.[339]

Along with such continued strife over incidents of color delistings, another federal regulatory battle also arose, this one unrelated to the Food, Drug, and Cosmetic Act. Beginning in 1973, the FDA exercised its authority under the Fair Packaging and Labeling Act to require that lipstick and all other cosmetics intended for consumer sale come with full ingredient labeling.[340] Ingredient names, listed in descending order of predominance and in proper nomenclature,[341] now needed to appear on all packaging.[342] Any ingredients used for flavor or fragrance purposes also needed to receive identification as such.[343] For cosmetics that also qualified as drugs,[344] active drug ingredients in the cosmetics needed to: be listed first, be listed not only on the outer but also on the inner container labels, and be identified as “active ingredients.”[345] These notions of cosmetics labeling had percolated for several years, ever since the passage of the Fair Packaging and Labeling Act in 1966, because the FDA had originally hesitated over whether the Act really gave the FDA authority to require cosmetics labeling.[346] The FDA had originally proposed voluntary labeling of cosmetics ingredients in 1972, which proposal the cosmetics industry rejected, only to have Georgetown professor Joseph Page, his student Anthony Young, and the Consumer Federation of America eventually convince the FDA that it could impose even stricter mandatory labeling requirements.[347] Upon initial publication of the labeling requirements, anyone adversely affected by the requirements had the right to object and request a hearing, which industry representatives duly proceeded to do until 1975.[348] Industry objections noted but not satisfied, the FDA phased in the new cosmetics labeling requirements over eighteen months, permitting exhaustion of existing inventories of lipsticks and other cosmetics so as to mitigate labeling requirements’ economic impact.[349] At that point, the cosmetics industry, in Independent Cosmetic Mfrs. & Distributors, Inc. v United States Dep’t of Health, Educ. and Welfare , turned to the court system for declaratory and injunctive relief against the labeling requirements. The D.C. District Court dismissed the suit for want of jurisdiction, which dismissal the D.C. Appellate Court upheld based on the Fair Packaging and Labeling Act’s specifying federal appellate courts as the forum for challenges to regulations promulgated under the Act.[350] Then, because the Appellate Court did have jurisdiction to hear the suit, the Court went on to consider and rule against the industry’s substantive and procedural challenges to the FDA’s labeling regulation.[351] After the Supreme Court denied certiorai,[352] the cosmetics industry settled down to obeying ingredient labeling laws, which have since grown increasingly detailed as well as increasingly accepted.[353]

Simultaneous to this fighting over delisting of colorants and listing of ingredient though, the FDA and the cosmetics industry, as represented by the CTFA, also cultivated an uneasy partnership. As early as the 1960s, the FDA and CTFA had begun working more or less together to mediate the FDA’s goal of cosmetics safety and the CTFA’s goal of avoiding cosmetics regulations.[354] This collaboration produced most tangible results starting in the 1970s, however, with the initiation of the Voluntary Cosmetic Reporting Program in 1974, the formation of the Cosmetic Ingredient Review body in 1976, and negotiations over cosmetics Good Manufacturing Practice guidelines beginning in 1977. The Voluntary Cosmetic Reporting program represented a compromise by which manufacturers would voluntarily give the FDA information about the location of manufacturing establishments, the ingredients used in products, and incidents of adverse reactions to products, in exchange for the FDA not implementing mandatory reporting regulations.[355] To apply this regulatory scheme to lipstick: a lipstick manufacturer wishing to maintain good FDA relations could fill out information forms on its lipstick manufacturing plants, its lipstick ingredients, and any reported problems with its lipsticks, but the lipstick manufacturer would not absolutely have to do so. Due to this last option of not having to file reports if the costs of doing so seem to outweigh the goodwill benefits, Voluntary Cosmetic Reporting did not prove an unqualified success, as discussed later. It does, however, still exist in revised form today.

More complete success seems to have resulted from the contemporaneously formed Cosmetic Ingredient Review, as measured by the relative lack of FDA and consumer mumblings about the process as well as by the alternate cost of the FDA taking the ingredient review process upon itself. Scholars disagree as to whether the initial suggestion of creating a cosmetics industry-funded ingredient review board came from the FDA or from the CTFA.[356] However, one or the other of these entities initiated exploratory meetings on cosmetics ingredient testing in 1974, followed by a series of briefings and review meetings in 1975.[357] The Consumers Union, upon hearing about these meetings, brought Consumers Union of United States, Inc. v. Dept. of Health, Educ., & Welfare , challenging that the meetings qualified as advisory committee meetings and, under the Federal Advisory Committee Act, needed to occur in public.[358] Although the Consumers Union lost the case on summary judgment,[359] the Consumers Union nonetheless succeeded in bringing about the formation of a somewhat publicly-accessible Cosmetic Ingredient Review body.[360] Said Cosmetic Ingredient Review body, officially formed in 1976, took the FDA’s own developing Over-The-Counter Drug Review body as its model.[361] The Cosmetic Ingredient Review has the stated goal of providing “independent, public expert review of the most frequently-used cosmetic ingredients.”[362] To accomplish this goal, the Cosmetic Ingredient Review features an Expert Panel of seven scientists and physicians[363] whose assessment of ingredients is overseen by three non-voting liaison representatives, appointed by the FDA, the CTFA as industry spokesperson, and the Consumer Federation of America as consumer watchdog respectively.[364] Voting Expert Panel members, selected via public nomination[365] by scientific and clinical societies, government agencies, and consumer organizations, ask that manufacturers submit test data for or undertake costly tests on ingredients that have made the Cosmetic Ingredient Review’s “priority list” based on the ingredients’ frequency of use or suspected or known toxicity.[366] Panelists then review the results that manufacturers submit, and determine ingredients safe, unsafe, or undeterminable due to lack of sufficient data.[367] Determinations receive publication in an annual CIR Compendium , which determinations the industry tends to rely upon but is not bound to follow.[368]

Along similarly advisory but not mandatory lines, the FDA and CTFA began negotiating over creation of cosmetics Good Manufacturing Practices. In 1977, the FDA announced that it intended to institute Good Manufacturing Practices for eye make-up preservatives as a first step towards having Good Manufacturing Practices for all types of cosmetics.[369] Rather than protesting against such imposition of Good Manufacturing Practices, the CTFA merely filed a petition stating what the industry would prefer to see in such cosmetics Good Manufacturing Practices.[370] The FDA then incorporated the cosmetics industry’s petition into the Good Manufacturing Practice guidelines featured in the FDA “Investigations Operations Manual.”[371] Since then, the FDA has removed the guidelines and so ended federal cosmetics Good Manufacturing Practices altogether.[372] Despite the cosmetics Good Manufacturing Practices’ minor importance as regulations though, they retain major historical importance as a formative instance of FDA and cosmetics industry collaboration. Amidst the legal battling between the FDA and the cosmetics industry over color delistings and labeling requirements, the two also managed to develop the collaborative relationship that characterizes current government-industry relations, and informs the sparing regulation of cosmetics as compared to the regulation of foods and drugs.[373] Along with all cosmetics, lipstick underwent increased federal safety regulation in the 1970s, but of a lenient voluntary nature. Although lipstick’s social signification and accompanying social norms evolved in uniquely conflicted ways during the 1970s, lipstick’s legal regulation included few, if any, idiosyncrasies.

1980s

Developments that encompassed but did not focus on lipstick even more strongly characterized the 1980s’ informal and formal regulatory environment. The individual product of lipstick changed little in the 1980s, either socially or technologically. Red became the de rigeur color, worn by all cosmetics icons from Madonna, to Jerry Hall, to Ivana Trump, to Nancy Reagan.[374] Advertising lipsticks as not tested on animals just began to gain market cache.[375] Beyond that, however, it appears that no lipstick-specific news merited contemporary documentation. Plenty of regulatory events involving cosmetics generally did occur though, attention prudent given that the global cosmetics industry had grown into $118 billion behemoth.[376] Most noteworthy among the regulatory events came: continuing color delistings, continuing industry self-regulatory measures, and a new burst of state legislation.

Despite its own vociferous dislike of doing so, the FDA delisted several more cosmetics colors during the 1980s. Initially, the FDA tried to avoid delisting colors, because it considered the Delaney Clause standard for delisting, namely any risk of cancer no matter how minute, simply illogical.[377] This strategy backfired though, when Secretary of Health and Human Services Margaret Heckler had to face legislative charges of willfully violating the law by not banning dyes known to cause cancer.[378] Heckler argued in defense that a de minimis exception to the Delaney Clause existed, that Congress did not intend to ban colorants whose normal usage posed only the smallest risk of cancer to humans.[379] This argument did not much satisfy many members of Congress,[380] or the consumer group Public Citizen,[381] which brought suit against FDA Commissioner Frank E. Young for having approved external use of Red No. 10 and Orange No. 17 despite knowledge that both substances can cause liver cancer in rats.[382] Douglas Letter argued on behalf of the FDA that: “Because the risks presented by these dyes were so small... [the agency] had ‘inherent authority’ under the de minimis doctrine to list them for use in spite of [the Delaney Clause] language.[383] Peter Barton Hutt argued on behalf of intervenor CTFA that: “Manufacturers need a wide choice of colors, just as the Renaissance artist needed a full spectrum on his palette centuries ago.”[384] Despite these FDA and CTFA arguments, and despite judicial agreement that the colorants posed only “trivial” risk, the D.C. Court of Appeals ruled in favor of Public Citizen.[385] The Court wrote:

We hold that the Delaney Clause of the Color Additive Amendments does not contain an implicit de minimis exception for carcinogenic dyes with trivial risks to humans. We base this decision on our understanding that Congress adopted an "extraordinarily rigid" position, denying the FDA authority to list a dye once it found it to "induce cancer in . . . animals" in the conventional sense of the term. We believe that, in the color additive context, Congress intended that if this rule produced unexpected or undesirable consequences, the agency should come to it for relief. That moment may well have arrived, but we cannot provide the desired escape.

Following denial of certiorari by the Supreme Court,[386] the FDA banned Red No. 19 and Orange No. 17, as well as Red No. 8 and Red No. 9, to much fanfare. This ban marked the first color additive delisting since 1976, and the only time that so many colors had gotten delisted at once.[387] The lawyer for Public Citizen, William B. Schultz, proclaimed the ban a public victory, because it involved losing no health benefit and gaining a little cancer prevention. Schultz told The Washington Post : “For cosmetics, it may mean that there are a few shades of lipstick that will be lost. I think that will make no difference to people.”[388] Cosmetics manufacturers assured The New York Times , that the industry had already reformatted lipsticks and other cosmetics immediately after the Public Citizen v. Young decision, and so consumers would notice no difference in products following the FDA regulation.[389]

Then, shortly after this colorant spectacle, the FDA announced the additional delisting of Red No. 3. A large-scale study in the early 1980’s had shown that Red No. 3 can cause thyroid cancer in rats when used in very high doses, but the FDA resisted delisting Red No.3 until 1990 based on how miniscule a risk this lipstick color additive posed to humans.[390] Extrapolating the study’s data showed a maximum human risk of no larger than one in one-hundred thousand from a lifetime consumption of Red No. 3, a risk significantly smaller, the FDA pointed out, than that of natural disasters or airplane accidents.[391] Having had its commonsense arguments about such risk analysis categorically rejected in Public Citizen though, the FDA droopily banned Red No. 3 accompanied by public statements that it disliked doing so.[392] Secretary of Health and Human Services Dr. Louis W. Sullivan “all but apologized” for delisting Red No. 3, stating that: “Today’s action [removing Red No. 3 from cosmetics like lipstick] is yet another reminder of the need for Congress to consider updating the law to reflect advances in the methods of scientific assessment that were not available when the law was originally passed in 1960.”[393] The FDA considered the Delaney Clause miserably outdated, because the Clause’s zero tolerance premise that had seemed sensible in a time of crude knowledge about and detection of carcinogens now proved irrational in an era of more sophisticated understanding of cancer.[394] In contrast, California Representative Henry A. Waxman, who had placed continued political pressure on the FDA to delist Red No. 3, counter-argued that: “The Delaney Clause is founded on the principle that it is good public policy to err on the side of public health.”[395] Political will favored Waxman, and the Delaney Clause remains on the legislative books today.

Since the FDA favored, or at least guardedly trusted, the cosmetics industry though, most cosmetics regulation continued to impose less severe safety standards and to take the form of self-regulatory measures. Commissioner Young testified before Congress in 1988 that “cosmetics [are] the lowest of the hazards” that the FDA regulates, which testimony the subsequent Commissioner David Kessler would echo in a 1991 Congressional hearing.[396] Dr. Heinz J. Eiermann, the director of the FDA’s division of cosmetics technology, perhaps best explained matters with the remarks that: the FDA considered cosmetics much less of a concern than food or drugs, and so thought it prudent to conserve FDA resources by allowing the cosmetics industry to self-regulate, but the FDA also worried about consumers thinking that cosmetics received much more careful regulation than they actually did.[397] Reasonably enough then, the FDA navigated this intellectual conflict by pressuring the cosmetics industry to adopt such self-regulatory measures as extended labeling and continued ingredient reviews. Since, as previously footnoted, the Fair Packaging and Labeling Act only applies to products sold in retail establishments, the FDA lacked authority to force labeling of cosmetics sold exclusively for professional use.[398] Nonetheless, in 1989, the CTFA instituted a voluntary labeling program for professional cosmetic products.[399] This voluntary labeling program tends to privilege simplicity for manufacturers over informative value for users, for example, it has ingredients listed in alphabetical order rather than in order of predominance, but the program still fairly resembles the FDA’s mandatory labeling system.[400]

Voluntary ingredient reviews also continued, by this point a firmly established industry practice that stood “the centerpiece of current industry self-regulation.”[401] Working through its mandate to provide independent review of the safety of one-thousand seven-hundred cosmetics ingredients, the Cosmetics Ingredient Review had investigated two-hundred and twenty-nine ingredients by its tenth anniversary of operation.[402] Determinations from these investigations met with almost universal industry compliance, a dutifulness rendered less surprising when one considers that the Cosmetic Ingredient Review only deemed one ingredient wholly unsafe. Said unsafe ingredient, an antioxidant called hydroxyanisole that tends to strip lips of their pigment, got promptly removed from lipstick in 1983.[403] Not everyone, however, felt satisfied by this industry ingredient review, or industry self-regulation more broadly. For example, the National Institute of Occupational Safety and Health went on record with the Chicago Tribune as critical that nearly nine-hundred cosmetics ingredients had come to government attention as potentially toxic, and yet only fifty-six of these ingredients had undergone industry review.[404] Consumer groups also found it troublesome that, in 1988, less than half of cosmetics manufacturers had reported any consumer complaints to the FDA under the voluntary reporting guidelines.[405]

Concerns about shortcomings of industry self-regulation found outlet not with the FDA but in state legislatures, producing a burst of new state cosmetics regulations. The multiplying state regulations concerning cosmetics mostly patterned themselves after the Food, Drug, and Cosmetic Act.[406] However, New York City and California went considerably beyond the federal model. New York City enacted the first restrictions on cosmetics companies’ use of store testers.[407] Governor Cuomo, concerned about the spread of eye inflammation, conjunctivitis, and herpes, successfully pushed for requirements that cosmetics companies who wished to let store customers sample their products either must use individual-sized testers of eye and lip products or must post signs warning that communal testers should only be used on hands or arms.[408] California, at the same time, enacted a more extensive and more contested regulation concerning cosmetics that contain carcinogenic or reproductively toxic chemicals.[409] Said California cosmetics regulation came embedded in Proposition 65, or, once passed, the Safe Drinking Water and Toxic Enforcement Act of 1986. As the name suggests, the Act primarily focused on, and received extensive publicity for, attempting to eliminate carcinogens and reproductive toxins from the California drinking water supply.[410] However, this ostensibly environmental law also contained rigorous warning requirements for consumer products that used chemicals “known by the state of California to cause cancer or reproductive toxicity.”[411] More specifically, the Act pronounces that:

No person in the course of doing business [which encompasses cosmetics companies] shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.[412]

Section 25249.10 then provides ways that cosmetics and other manufacturers can avoid labeling their products as health hazards by proving that exposure to any chemical listed as carcinogenic “poses no significant risk assuming lifetime exposure at the level in question” and that exposure to any chemical listed as reproductively toxic “will have no observable effect at one-thousand times the level [used in the cosmetics item].”[413] For those cosmetics and other manufacturers that either cannot or will not spend the money to prove all of their quantities of chemicals harmless though, the manufacturers’ products must carry labels[414] with clearly worded warnings of cancer or reproductive toxicity risk.[415] While the general populace did not much notice the advent of this new cosmetics safety system, the cosmetics industry lost no time in disputing it. Together with the food and drug trade associations, the cosmetics trade association petitioned the FDA to issue a regulation that would administratively preempt the California law for FDA-regulated products, but the FDA declined to do so.[416] Simultaneously, these trade associations petitioned the California to pass a “safe harbor” provision that exempted FDA-regulated products from the Safe Drinking Water and Toxic Enforcement Act.[417] This state-level petition succeeded a bit better than did the federal one, as California briefly enacted the requested safe harbor regulation, but the safe harbor soon got repealed in 1993 as part of a lawsuit settlement with environmental groups.[418] Thus, those selling cosmetics in California continue to contend with significantly heightened, but not entirely clear, ingredient safety requirements. More than five-hundred chemicals now appear on the state’s danger list, but many of the listed chemicals have established safe exposure levels while most unlisted chemicals have not received affirmative safety approval and so might suddenly require warning labels at any time.[419] Moreover, since not only the state Attorney General but also private citizens have authority to enforce the Safe Drinking Water and Toxic Enforcement Act, cosmetics manufacturers must take the threat of liability for intentional or inadvertent chemical content violations very seriously.[420] Particularly in California, but also in New York and at the federal level, the 1980s featured a continued development of general cosmetics safety regulations, although very little change concerning lipstick individually.

1990s

After a decade of high use but little discussion, lipstick entered an era of even higher use and much discussion, both social and legal. With cosmetics an $18.5 billion dollar industry in the United States alone,[421] and lipstick sales outnumbering sales of other cosmetics products four to one,[422] lipstick loomed socially large in the 1990s’ economic and cultural conscious. The economics of lipstick became a hot topic, within the wider business community as well as within the cosmetics industry. That more than three-quarters of all women wore lipstick, helps explain how Clinique could sell one lipstick every second of business hours.[423] Such figures also help explain Wall Street’s epiphany that lipstick represents a serious source of profit, specifically, ten dollars of revenue to every twenty-five cents of production cost, and the consequent flurry of economic activity involving lipstick companies.[424] Revlon, Inc. and Estée Lauder both had successful public offerings in the mid-1990s.[425] Other major lipstick producers became highly sought acquisition targets of Fortune 500 Companies, with Elizabeth Arden selling to Unilever and Cover Girl and Max Factor selling to Procter & Gamble.[426]

Although those within the lipstick industry had already treated their businesses as corporate concerns for half a century, this newfound corporate legitimation from those outside the lipstick industry led to still heightened levels of professionalism, particularly in the areas of product design and marketing. All major lipstick companies became engrossed in perfecting such product design details as the clicking sounds that their lipsticks made when closing.[427] Each line consciously engineered a different click intended to complement its brand image; Lancôme now uses a “definitive, well-engineered click,” Givenchy “a heavy click, more metallic than plastic,” and Clinique “a resounding snap,” to offer a few self-described examples.[428] Alternately, offering more liquid versions of lipstick in pots or tubes became a ‘novel’ way to deliver the product.[429] Major lipstick companies also developed a couple of crafty marketing strategies. The first of these strategies involved a more sophisticated form celebrity endorsement. Cosmetics companies had long used advertisements featuring celebrities to sell lipstick, but now companies leveraged celebrity power in a subtler manner. Specifically, lipstick companies created colors expressly for celebrities in the hopes that the flattered celebrities would wear the colors and become profitably associated with the companies’ brands.[430] Maneuvering popular figures into wearing a lipstick brand certainly cost less than did traditional celebrity advertising contracts and probably also had greater efficacy. For, by the 1990s, consumers recognized that celebrities appeared in formal advertisements only in order to make money rather than because they actually liked the given products, but consumers had not yet learned to suspect celebrities’ informal use of products as premeditated.

Additionally, there emerged a second promotional strategy of catering to newly recognized niche markets. Lipstick manufacturers had periodically tapped into both music and naturalist subcultures, but never with the concentration seen in the 1990s. Grunge culture that accompanied alternative music initially posed a threat to cosmetics, as grunge centered on rejecting beautification.[431] However, cosmetics speedily managed to capitalize on grunge, using a strategy best exemplified by Urban Decay, which devoted its entire line to abnormal colors with defiantly unattractive names like “Gunk” and “Roach.”[432] A fashion for “bare faces with off-kilter lipstick colors” also sprang from the marketing machines of lipstick manufacturers as an ideal way to merge grunge sensibilities with lipstick sales.[433] Those taking bizarre beauty products to their most radical offered glow-in-the-dark lipstick and other makeup, but the FDA put an end to this, because the makeup’s glow came from an unapproved color additive, zinc sulfide.[434] Similarly, lipstick began to target the naturalist market by incorporating trendy “natural” ingredients and allegedly gentler formulas. Many lipsticks began to boast vitamins and herbs.[435] Advertisements suggested, without actually stating, that hemp included in lipsticks would provide a high for or mellow out users.[436] St. John’s Wort within lipstick received similarly suggestive marketing as capable of providing a magical or medicinal mood boost.[437] Revlon began a “New Age Naturals” line,[438] while Estée Lauder started an ent