Conditions in Nail Salons and Potential Solutions for the Nail Industry in New York City (page 2)

Conditions in Nail Salons and Potential Solutions for the Nail Industry in New York City (page 2)

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5. INITIATIVES TO COMBAT INDUSTRY-WIDE PROBLEMS

Recent initiatives to enhance the regulation of the appearance enhancement industry have been targeted at improving sanitary conditions and curbing toxin levels. While the reforms have been well intentioned, they fail to address all of the issues affecting the industry and therefore do not provide a comprehensive solution.

A. Initiatives to Increase Cleanliness

Several states have passed legislation and sanctioned proposals to increase cleanliness in nail salons. While such measures may help reform one of the main issues present in nail salons today, in isolation, these efforts will not reform the industry.

In 2006, California enacted an “urgency law,” AB 409, to protect patrons from unsanitary conditions in nail salons. Immediately after Governor Arnold Schwarzenegger signed the bill, the law took effect, directing California’s Board of Barbering and Cosmetology to temporarily suspend, without a hearing, license holders from doing business in unsanitary nail salons. In signing the bill into law, Governor Schwarzenegger acknowledged that “unsanitary nail salons pose a serious health threat to consumers.” Leland Yee, the bill’s author, stated that proper cleaning and sanitary procedures are the first line of defense against infections and that salons that are not up to par “are not innocent businesses, but are irresponsible businesses risking the health of patrons and an entire industry.”

In Boston, Massachusetts, the Board of Health sanctioned a proposal in 2011 enabling the Boston Public Health Commission to regulate nail salons in the city. The proposal was aimed at attaining continuity in the operation of nail salons to protect nail technicians and nail salon patrons from acquiring diseases or infections. This decision gave the Boston Public Health.

Commission the authority to require nail salons to apply for annual permits and subjected the salons to regular health inspections.

Further, some states, including California and Texas, have passed legislation that permits inspectors to immediately shut down unsanitary salons. However, such laws granting inspectors the authority to shut down salons can only be effective if states have the resources to inspect nail salons.

B. Initiatives to Decrease Exposure to Toxins

In addition to proposals focused on increasing cleanliness, initiatives have also centered on decreasing toxin levels in nail salons. Industry-specific groups have formed to combat this
issue and individual workers have become activists.170 NHNSA, which was formed by the National Asian Pacific American Women’s Forum (“NAPAWF”), the California Healthy Nail Salon Collaborative (“the Collaborative”), and Women’s Voices for the Earth (“WVE”), is a broad umbrella organization working to increase awareness about nail salon safety. The Collaborative was established in 2005 because there were concerns about the rights and well-being of nail salon workers and owners. The Collaborative recommends the following: (1) that manufacturers of cosmetic products remove toxic ingredients “of known concern” from products, (2) that the FDA require pre-market testing of cosmetic ingredients, and (3) that the FDA have regulatory control over cosmetic ingredients.

Policymakers have responded to the concerns of patrons, nail technicians, and the NHNSA. In 2011, six counties in Massachusetts collectively established the “Greening Nail Salons for Employees and Communities” project to increase awareness of chemicals prevalent in nail salons and to promote healthier alternatives for nail technicians and patrons. The group intends to hire English- and Vietnamese-speaking consultants to better understand the problems facing the industry and to determine the general level of employee knowledge about potentially hazardous
conditions in nail salons. Further, in 2005, California enacted the California Safe Cosmetics Act, requiring cosmetic manufacturers to fully disclose the contents of products sold within the state. Following the passage of the California Safe Cosmetics Act, the state created a list of chemicals that would trigger state notification if present in cosmetic products in any quantity. In 2009, an online reporting system was launched to enable cosmetic manufacturers to report “chemical ingredient[s] suspected of causing cancer or reproductive toxicity.” In August 2010, Colorado followed California’s lead and introduced the Colorado Safe Personal Care Products Act, which was virtually identical to the 2005 California legislation. However, the Colorado legislation was never passed. In 2011, the San Francisco Board of Supervisors’ Public Safety Committee “passed the country’s first Healthy Nail Salon Recognition ordinance.” The ordinance, deemed a “groundbreaking first step toward addressing worker health,” enables the city of San Francisco to publicly identify nail salons that use nail polishes that do not contain the toxic trio. On the federal level, inadequate regulation has prompted lawmakers to reintroduce the Safe Cosmetics Act, which, if passed, would confer upon the FDA regulatory power over cosmetics to “ensure that personal care products are free of harmful ingredients and that ingredients are fully disclosed.”185.

The proposed Safe Cosmetics Act of 2011 would, among other things, lead to the gradual elimination of harmful ingredients in cosmetics, establish a “health-based safety standard that includes protection for . . . vulnerable populations,” eliminate “labeling loopholes by requiring full ingredient disclosure on product labels and company websites,” and provide greater access to information about the contents of the products.

Despite these new measures, recent legislation has overlooked the nail salon industry. In 2008, Congress passed the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), which made it unlawful “for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States any children’s toy or child care article that contains concentration or more then 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP).” CPSIA did not address the removal of  phthalates from cosmetic  products. In contrast, the European Union has banned phthalates in cosmetic products.

Aside from legislative reforms, “eco-friendly” salons and medical spas have also helped combat sanitation problems, albeit on a small scale.In eco-friendly salons, workers use specially approved products that purportedly do not endanger technician or patron health. Though these products encourage healthier environments, they are not the answer to broader industry problems. First, there is no “green certification” for nail salons, so there is no formal check on actual usage of these products. Therefore, false advertising may mislead patrons. Second, services in eco-friendly nail salons are often costlier; thus, individuals looking for an inexpensive “treat” are not likely to frequent such salons. Third, there are higher barriers to entry into the eco-friendly salon business. While opening a typical nail salon may cost between $40,000 and $70,000, it can cost
between $250,000 and $500,000 to open an eco-friendly salon. Finally, the mere use of eco-friendly products will not altogether alleviate the rampant sanitary issues plaguing nail salons today because using such products will not increase cleanliness. Additionally, medical spas now offer “Medi Pedis,” a more sanitary version of regular spa pedicures. For many of the same reasons that the establishment of eco-friendly salons will not solve industry-wide sanitation problems, medical spas will not either. Medical spas are not as common as nail salons and
Medi Pedis are quite expensive, costing between $150 and $200 for a single service.Those who are able to afford Medi Pedis, however, are quite satisfied. Altogether, current legislative and private market responses inadequately address both sanitation issues and toxic threats. There is a clear need for an alternative approach to combating problems facing nail salons.

 

6. PROPOSED SOLUTIONS

To ensure adequate protection for nail technicians and patrons, regulations in the industry must be  changed and improved upon. In theory, regulations designed to improve sanitation procedures should reduce the number of infections transmitted and diseases contracted in nail salons. In practice, however, technicians may not adhere to these regulations, thus rendering them ineffective. In order to effectively improve nail salon conditions, the existing and evolving legal framework must be supplemented with measures such as increased inspections, incentives to  comply with regulations, and safety and sanitation education for technicians and patrons.

These objectives could all be efficiently accomplished within the framework of a grading system analogous to the restaurant grading system implemented in New York City in 2010. Notably, a similar grading system was implemented in North Carolina for nail salons and has increased the amount and availability of information available to patrons.

In July 2010, the New York City Department of Health and Mental Hygiene (“NYC DOHMH”) began requiring every restaurant to visibly display a sign bearing a letter grade, which corresponded to the numerical score the restaurant received during its latest inspection. Unlike nail salons, each of New York City’s 24,000 restaurants is inspected at least once a year. The goal of this program was to increase consumer knowledge regarding restaurant conditions, thus enabling consumers to make informed choices. One year after the grading system was implemented, studies lauded the program’s success. Specifically, “70 percent of New Yorkers notice[d] the grades posted at restaurant entrances, and 65 percent use[d] the grades to help them  decide where to eat all or most of the time.” As a result of the new program, the cleanliness of the
restaurants has improved.

The success of the restaurant program in New York City, coupled with the existence of grading programs for the nail salon industry in North Carolina, suggests that a nail salon grading system may be successful in New York City. Currently, the regulation and licensure of nail salons in New York is handled on the state level; however, in 2011, a bill was introduced in the New York State Assembly that, if passed, would require all “appearance enhancement businesses,” including nail salons located in New York City, to “be maintained and operated in accordance with the provisions of the city health code.” Passage of this bill would effectively shift oversight of New York City nail salons from the state to the city, thus following the nation-wide trend of fighting industrywide problems at the local level. This would also effectively place nail salons within the jurisdiction of the NYC DOHMH, the same agency responsible for successfully implementing New
York City’s restaurant-grading regime.

From an institutional competence perspective, the NYC DOHMH may be the agency best tasked with the job of improving conditions in nail salons in New York City. This task appears to fit within the agency’s mission, to “protect and promote the health of all New Yorkers.” Further, in the past,
the agency has implemented “groundbreaking initiatives,” which have led to decreased smoking rates and the expansion of primary health care to New Yorkers. The agency’s practice of dispersing
newsletters and press releases about important ways to remain healthy would also encourage a more informed consumer base. Therefore, it is highly plausible that the NYC DOHMH could implement a new pilot program, such as the one proposed in this Note.

A nail salon grading system should closely follow the practices of the restaurant grading system. First, inspection of nail salons should increase. Second, like restaurant inspectors, nail salon inspectors should score nail salons on a multitude of health and sanitation factors and then convert  the score into a letter grade, which the salon would be required to post. The inspection process itself should also closely parallel the one for restaurants. During restaurant inspections in New York City, inspectors “check for compliance in food handling, food temperature, personal hygiene and vermin control.” While nail salon inspections would be dictated by salon-specific factors, a
salon’s score could be tabulated in the same fashion.

Regardless of industry-specific differences, the inspection and grade posting itself could have the same positive externalities in the nail salon context as it has had in the restaurant context. Specifically, one of the major benefits system in the restaurant industry has been the “successful means of incentivizing restaurant owners to improve and maintain best food-safety practices as well as communicating that information to customers.” Further, the restaurant grading initiative in New York City has increased employee training. The  implementation of this system would likely  have similar effects on the nail salon industry, incentivizing owners to improve their practices and to offer increased employee training.

As some researchers believe that education is “[t]he cornerstone of safety in nail salons,” it would be wise to include continuing education as a component in a holistic assessment of nail salon safety. For example, since the receipt of fewer points would indicate that a nail salon is more sanitary, inspectors could award negative points to a nail salon’s score if its nail technicians enrolled in continuing education courses. Several industry-specific groups support the view that continuing education should be mandatory for license renewal because the “lack of education and information hinders nail technicians from following best practices in nail salons.” According to the California Healthy Nail Salon Collaborative, broad-based continuing-education courses can help license holders stay “up to date on health and safety issues ranging from appropriate handling
and disposal of products containing toxic chemicals to procedures for sanitizing foot spas.” Furthermore, requiring nail technicians to attend additional courses in lieu of monetary fines
may be more effective. In particular, research has demonstrated that certain types of  continuing-education programs, such as interactive workshops, can have a positive impact on “professional practice.” Continuing education would provide nail technicians with knowledge to make improvements to ensure their own health and safety in addition to the health and safety of
patrons.

Though New York does not currently require continuing education for nail technicians, the state does impose continuing education requirements or its functional equivalent in many other professions, which suggests that such requirements may be implemented in the cosmetic industry. In 2011, a bill was reintroduced in the New York State Assembly that proposed
amending the state’s General Business Law to require mandatory continuing education classes for licensed appearance enhancement professionals, including nail technicians, in the fields of “infection control and transmission.” The Committee Report stated that passing a bill of this nature is of “paramount importance,” because it is essential to protect New Yorkers from harmful infectious diseases, including infections that can be transmitted in nail salons. This is especially true in light of recent findings regarding the transmission of hepatitis in nail salons. Though the bill was not passed, it should be reintroduced. In the interim, negative points for educational
programs in the grading system would incentivize nail salons to introduce such measures, absent a legislative mandate.

The grading system would assist patrons in making informed choices in their nail salon selections. Since nail salons would be required to post the grade received during inspection, patrons would immediately be privy to greater information regarding the nail salon and its business practices. As illustrated in the restaurant context, individuals actually do consider grades when selecting restaurants; therefore, one could infer that the same would occur in the nail salon context.

 

7. CONCLUSION

Serious ills can stem from nail salons and can impact the livelihood and well-being of patrons and technicians. This Note has presented practical solutions that could be implemented fairly easily given the preexisting framework for restaurant inspections. Increased inspections result in earlier identification of health and sanitation problems. Since severe side effects from exposure to chemicals generally worsen over time, identifying problems earlier could reduce illness and disease among workers. Increased inspections would also address sanitation issues so that fewer patrons contracted dangerous diseases and infections. Computing and posting nail salon grades is dually
beneficial because the grades increase patron knowledge while concurrently incentivizing nail salon owners to comply with rules and regulations. Since the restaurant-grading program has thrived in New York City, it appears that an analogous program in nail salons could be highly successful as well.