Summer Reading: Flying Beach Umbrellas and the FDA’s Sunscreen Folly

Ross Marchand

August 9, 2019

By now, most lawmakers have long filed away their proposed legislation and are either hanging out beachside or sipping a fruity cocktail by the pool. We hope that they get some relaxation before coming back to Washington, D.C. and hopefully making a dent in that $22 trillion. But, that’s not easy for some members of Congress worried about…wait for it…flying beach umbrellas and sunscreen lotion regulation.

Sens. Bob Menendez (D-NJ), Corey Booker (D-NJ), Mark R. Warner (D-VA) and Tim Kaine (D-VA) are paranoid that, absent federal action, beachgoers will be impaled by windborne beach umbrellas with sharp edges. At the end of July, the quixotic quartet wrote to the Consumer Product Safety Commission (CPSC) urging them to “launch a public safety campaign to educate the public about the dangers of beach umbrellas.”

They note that, “there is currently no CPSC-led public education campaign on the dangers of beach umbrellas. Yet, a July 6, 2019 tweet and Instagram post from the CPSC’s social media accounts remind consumers to properly stake their beach umbrellas. We were pleased to see the CPSC take the issue of beach umbrella safety seriously.” And no, this wasn’t their first letter. In May, the lawmakers wrote to the commission to ask about the number of injuries caused specifically by beach umbrellas over the course of the decade (sadly, the CPSC website only includes data on allumbrellas). The commission assured them that beach umbrellas were a miniscule threat to beachgoers, accounting for about 2,800 injuries since 2010 compared to about 30,000 umbrella injuries over the same period. To add some context, that amounts to about 300 injuries per year out of the approximately 60 million Americans that visit the beach annually. The risk of getting impaled by a flying beach umbrella is probably lower than the risk of getting into a car accident on the way to the beach.

Fortunately, CPSC threw sand in the gears of the lawmakers’ call to action, stating, “technical staff does not believe that a safety standard would have a substantial effect on injuries from beach umbrellas incidents.” Safe to say, though, if our worrywart members of Congress haven’t backed down even after obtaining injury data and technical pushback from the CPSC, they won’t be going away anytime soon.

But even if lawmakers come for umbrellas, beachgoers have sunblock to fall back on…right? Maybe not, depending on how risk-averse the Food and Drug Administration (FDA) wants to be. In February, the FDA proposed a rule updating labeling requirements for sunscreens, including a notification for, “sunscreens that have not been shown to help prevent skin cancer” along with “revised formats for SPF, broad spectrum and water resistance statements.”

Additionally, the FDA, “Proposes to clarify FDA’s expectations for testing and record keeping by entities that conduct sunscreen testing to ensure that the FDA can assess industry compliance with regulations.” Except…the market is already doing just fine making sure that sunscreens do what they’re supposed to do.

In April, Consumer Reports published a report cataloguing the “Best Sunscreens of 2019” based on a test in which CR testers “smear sunscreen on plastic plates, pass UV light through, and measure the amount of UVA [ultraviolet A] and UVB [ultraviolet B] rays that are absorbed. That information is then used to calculate our UVA score.” Note that these sorts of tests aren’t too different from what the FDA does. Critically, however, consumer watchdog groups don’t rely on government funding and can’t impose significant labeling and testing costs on producers (which are then passed along to consumers). 

As with many products, the FDA has proven slow and unable to keep up with innovation in the sunscreen market. Writing for The Regulatory Review, contributor Edward Hale notes, “Over-the-counter sunscreens are classified as drug products under FDA regulation. New over-the-counter active ingredients must be ‘generally recognized as safe and effective’ before they can be marketed to the public.

….

The approval of new sunscreen ingredients in the U.S., however, is slow when compared to other countries. The FDA did not approve a single new active sunscreen ingredient between 1999 and 2013. In response, Congress passed the Sunscreen Innovation Act in 2014. The Act requires FDA to provide a streamlined approach to approving new over-the-counter sunscreen ingredients, including evaluating applications that an ingredient is safe and effective on an expedited timeline.”

Regulatory reform and streamlining would lead to a more effective FDA approvals process and put the agency on par with its international counterparts. Even if federal agencies and commissions play ball, though, there will always be the issue of pesky lawmakers pushing for regulations to address even the most miniscule risks.

But risk can’t simply be willed – or regulated – away, and beachgoers will inevitably have to deal with the (tiny) possibility of rip tides, malevolent lifeguards, or, yes, flying umbrellas. Lawmakers should ignore their silly co-workers, soak in some sun (with sunscreen), and eventually migrate to a lounge under a sturdyumbrella.

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