1. INTRODUCTION INDUSTRY IN NEW YORK
The nail salon industry as a whole includes the single largest population of licensed professionals in the United States, and, in the last twenty years, the number of nail salons has more than tripled. For comparison, for every one Starbucks retail outlet in the United States, there are more than four nail salons. Increased attention towards personal grooming, the surge of women into the labor market, and the advent of low-cost nail salons have altered the industry, which is now “far from only a luxury niche.” Today’s nail salon patrons view the service as a “low-cost, good-feeling thing that’s accessible to everybody,” with some even viewing inexpensive manicures as an “inalienable right.” Roughly forty percent of women assert that they get pedicures on an occasional basis and men also enjoy the service.
With nail salons expanding to new locations, such as supermarkets, drug stores, and airports, individuals can get a manicure or pedicure just about anywhere. Consequently, the absence of widespread, methodical regulation of the nail salon industry is becoming increasingly problematic. Unsanitary conditions may lead to infections for patrons, which can sometimes become fatal. Moreover, consistent exposure to toxic chemicals, specifically formaldehyde, dibutyl phthalate (“DBP”), and toluene, together identified as the “toxic trio,”
pose a threat to nail technicians, most of whom are female and “half of whom are of child-bearing age.”
Although the nail salon industry is regulated in some form at the federal, state, and local levels, the current patchwork regulatory framework is inadequate. Generally, state and local regulations dictate license eligibility and govern the day-to-day business of salons. Inevitably, regulations vary among states, with more stringent regulations in some states than in others. Federal regulations focus on the ingredients within products used in nail salons and are primarily handled by the Food and Drug Administration (“FDA”) and the Environmental Protection Agency (“EPA”). In some instances, state and local governments enact rules that augment existing federal laws. Accordingly, an effective examination of conditions in nail salons addresses regulations at the local, state, and federal levels.
While the breadth of the nail care industry may seem narrow, the industry has far-reaching effects on the economy and impacts the health and wellness of nail technicians and patrons. This Note discusses the health and sanitary concerns stemming from nail salons and how these issues may negatively impact nail technicians and nail salon patrons. It asserts that both technicians and patrons face serious health problems resulting from inadequate regulation. It argues that while increased federal legislation may help this situation, alternative solutions at the state and local levels are likely to have a stronger and more immediate effect on the issues inherent in nail salons. Part II of this Note discusses the history of the nail salon industry in the United States and examines the state of the industry today. Part III details the hazardous conditions in nail salons caused by unsanitary conditions and toxic chemicals, as well as their impact on technicians and patrons. Part IV provides an overview of the local, state, and federal regulation of the nail salon industry. Part V discusses current initiatives to make nail salons safer, including recently implemented legislation from various cities and proposed federal legislation. Finally, Part VI presents solutions for combating both unsanitary conditions for nail salon patrons and hazardous working conditions for nail technicians in New York City. Ultimately, this Note concludes that adopting a new regulatory and inspection framework for nail salons in New York City could improve conditions within nail salons for technicians and patrons, thereby reducing illness among workers and infections among patrons.
2. AN OVERVIEW OF NAIL SALONS IN THE UNITED STATES
To fully understand the breadth of the nail salon industry today, it is useful to examine the historical context from which the industry developed. The foundation of modern-day nail salons in the United States was laid in the early 1900s. In 1910, there were “Pedicure Clinics” in New York City where working-class individuals could have qualified professionals tend to their feet. Alternatively, those with larger disposable incomes patronized the Elizabeth Arden Red Door salon, which opened in the same year. At this time, texts about manicuring were published and inventors filed patent applications for fingernail “shields,” meant to protect nails from discoloration and give them a clean and neat appearance. In the ensuing decades, more immigrant women arrived in the United States and opened up nail salons. The absence of formal regulations appealed to immigrant women, many of whom lacked resources to devote to education and training. Consequently, these women learned on the job and circumvented the requisite training and licensing requirements faced by beauticians.
The nail salon industry has been recognized as the fastest growing sector within the beauty industry, with an estimated market size of $7.3 billion. Projected growth for nail technicians between 2008 and 2018 is 18.8 percent, which exceeds the average rate for all other occupations, estimated to be 10.1 percent. In 2011, there were 51,244 nail salons and 355,600 nail technicians in the United States; 16,335 of those nail technicians were located in New York.
Current industry trends contribute to problems plaguing the industry. Since more nail salons have opened, competition has increased and, in line with the principles of supply and demand, prices have decreased. While it may appear that low prices benefit consumers, this may not be the case, especially if inferior products and questionable sanitation standards sustain low prices.
3. HAZARDOUS CONDITIONS IN NAIL SALONS
A. Infections and Diseases due to Unsanitary Conditions
While regulations require nail salons to be clean and instruments to be properly sanitized, surveys show that such regulations are both insufficient and erratic. For example, at a nail salon in California, researchers found skin and “enough hair to make a toupee” inside of pedicure footbaths, which the nail salon’s owner admitted had never been cleaned. Based on situations like this, it is reasonable to conclude that some salons do not follow disinfection and sanitary guidelines all of the time. Such unclean conditions expose patrons to harmful and potentially life-threatening infections and diseases.
Even if nail technicians use care while working, patrons may be pinched or cut with instruments, exposing them to diseases in salons. Accordingly, in New York, tools that are “intended to penetrate skin or enter pores” must be sterilized. One way such tools can be sterilized is with an autoclave, which is “a container for sterilizing . . . by superheated steam under pressure.” Since footbaths and accompanying drains cannot be autoclaved, alternative sterilization techniques should be employed to ensure that hair and skin do not accumulate and transform footbaths into “breeding grounds” for bacteria, which can then enter the body through freshly shaved skin, cuts, or abrasions. Specifically, patrons may incur Staphylococcus (“staph”) infections, hepatitis, and bacterial infections.
1. Staph Infections
Staph is a type of bacteria that frequently houses itself on the skin of healthy individuals. However, if staph makes its way deep inside one’s body, it can trigger a serious infection. Nail salon patrons can contract drug-resistant staph infections from manicures or pedicures, including the deadly methicillin-resistant Staphylococcus aureus (“MRSA”), the leading source of bacterial foot infections seen by physicians. A 2007 study estimated that 90,000 people in the United States contract staph infections each year and that staph-infection-related deaths may
exceed AIDS-related deaths. While this germ has typically been confined to hospitals, its prevalence in other settings is increasing. For example, Kevin Warnke filed a lawsuit in Texas in 2006 in which he claimed that he obtained a staph infection from a nail salon when, during a pedicure, a nail technician cut his toe with an unclean instrument.
Hepatitis is another disease that can be contracted from nail salons. Hepatitis is “contagious, virulent, and has a high rate of transmission.” The disease’s ability to subsist for approximately seven days on plain surfaces make nail salons prime incubators for hepatitis. Despite this, little formal research exists on the connection between hepatitis and nail salons and, due to this, the Occupational Safety and Health Administration (“OSHA”) has not formulated guidelines to prevent the spread of hepatitis in nail salons. The Virginia Department of Health, however, has begun to study this issue after an individual reported a case of hepatitis that was “clearly related” to a manicure and pedicure.
3. Mycobacteria Infections
Nail salon patrons are also susceptible to skin and soft tissue infections from various strains of Mycobacterium living in nail salon footbaths. Mycobacteria infections may begin as “small non-tender papule[s],” which some patients describe as an insect bite, and develop over time into large boils and ulcerating lesions. However, because it may take up to four months for boils to develop, by the time one seeks medical attention, he or she may not realize the ailment stemmed from a visit to a nail salon. Further, to identify a Mycobacterium fortuitum infection, one usually must undergo a “minor surgical procedure known as a punch biopsy of the skin.” If specific laboratory procedures are not followed, particularly those dictating the proper surface for growing samples, the bacteria may never be identified or traced back to a nail salon. Further, since many infections are “treated” by nail technicians or clients without the aid or advice of a physician, many infections are never reported or formally diagnosed. Therefore, for all of the reasons noted above, the number of infections that are reported may be artificially low.
Recently, there have been outbreaks of infections in California. In 2000, over 100 women in Watsonville, California suffered from Mycobacteria infections. While all of the infections were traced to a single salon, subsequent inspections of other nail salons in the area revealed that pedicure footbaths were filled with Mycobacterium fortuitum. Month-long courses of antibiotics were prescribed for some victims; however, in some cases, the antibiotics did not clear up the infection. Accordingly, some of the victims have been left with scars and others have required skin grafts. In response to this outbreak, seventy-four of the victims sued the nail salon “and
manufacturer and suppliers of pedispa chairs used at the salon.” The parties ultimately settled for $2.919 million.
In 2004, more than 120 people in San Jose, California fell victim to pedicure-related bacterial infections. Mycobacterium chelonae, a “microbial cousin” to Mycobacterium fortuitum, was the bacteria responsible for the San Jose outbreak. Further, this outbreak, unlike the Watsonville outbreak, was traced to multiple nail salons. Some of the victims sued the responsible salons, alleging that they failed to properly disinfect their pedicure footbaths and instruments. Discovery indicated that one of the owners of Nails National, a nail salon named in the suit, “repeatedly instructed staff members . . . to use 409, a household cleaner instead of EPA-approved disinfectants.”
4. Preexisting Medical Conditions and Risk of Infection
Infections are hazardous to the population at large, and even more detrimental to individuals with underlying health conditions whose immune systems are weakened. In 2006 and 2007, three
women, who suffered from preexisting medical conditions, died from infections reportedly contracted from pedicure footbaths. In Texas, a pumice stone cut Kimberly Jackson’s heel during a
pedicure. Ms. Jackson, a paraplegic, afterwards contracted a staph infection, which ultimately caused her to suffer a heart attack. In 2006, Jessica Mears, who had Lupus, developed a lesion on her calf after having a pedicure at one of the salons named in the 2004 San Jose outbreak lawsuit. Ms. Mears passed away after suffering from a Mycobacterium infection for more than a year. A pedicure may also be to blame for the 2007 death of Gerry Ann Schabarum. Ms. Schabarum died after battling a staph infection that her family members believe she acquired during a pedicure. Ms. Schabarum, similar to Ms.Jackson and Ms. Mears, had a preexisting illness at the time of the pedicure in question, which may have weakened her immune system .
B. Exposure to Toxic Chemicals in Nail Salons
While nail salons are potentially harmful for patrons, nail technicians are also at risk. Specifically, regulations pertaining to toxic substances contained in products used in nail salons are inadequate. Nail technicians are exposed to toxic substances for greater periods of time than nail salon patrons; therefore, the impact on their health may be much more severe. In 2007, Time Magazine placed nail technicians on its “Worst Jobs in America” list because nail technicians are consistently exposed to chemicals deemed carcinogenic by the EPA. Further compounding this problem is the fact that many nail technicians have little English fluency meaning that they may have even less access to information about the dangerous products than their counterparts who speak English fluently.
Many compounds present in products used in nail salons are thought to be carcinogenic. While long-term exposure to carcinogens may result in cancer, overexposure to some chemicals may result in other physical ailments. Specifically, overexposure to ingredients frequently found in products used in nail salons may cause “headache[s], dizziness, irritation to skin, eyes, and throat, . . . central nervous system depression, . . . skin rash, confusion and/or haziness, . . . and uncontrollable muscle contractions,” among other things. Specifically, inhaling “organic solvents [such as toluene and formaldehyde] and (meth)acrylates can cause a variety of neurologic, neuropsychological, and psychiatric symptoms such as anxiety, depression, psychomotor slowing, and impairments in concentration and memory.” Findings from a 2002 study reveal that even “low-level, long-term exposure to solvents . . . can result in observable decrements in neurosensory and cognitive performance.” Critically, the study established that exposure to neurotoxic substances “is likely to occur with greater frequency and intensity in a nail studio than in most settings Studies have shown that formaldehyde, DBP,toluene, and other toxins are in fact present in the air in nail salons. However, the EPA has asserted that when ventilation systems are operating properly, the concentration of formaldehyde in nail salons is similar to the concentration of formaldehyde in general office buildings. Despite this, it is reasonable to assume that some nail salons may not utilize adequate ventilation systems, thus enabling dangerous levels of toxins to lurk in the air in nail salons. Consequently, the Department of Homeland Security Science and Technology division is looking into detecting traces of the toxic trio in nail salons using smartphone technology. A 2008 study funded by the National Institute for Occupational Safety and Health (“NIOSH”) focused on “occupational exposures” to various phthalates, including DBP.
Researchers collected urine samples from workers in a variety of industries and compared the “end-shift metabolite concentrations” of the samples with samples collected from the population at large.106 Test results indicated that DBP exposure in nail salons was “2-fold higher” than DBP exposure in the general population. Despite its ability to craft recommended occupational safety and health standards, NIOSH does not have the power to issue or enforce those standards. Alternatively, OSHA is empowered to establish permissible exposure limits (“PELs”). Through PELs, OSHA sets limits on the level or “concentration of a substance in the air” and may set limits on how much of a particular toxin can be exposed to one’s skin based on “8-hour
time weighted average . . . exposure.” Specific PELs exist for formaldehyde and toluene, toxins specifically found in nail salons. Though the levels of toxins found in nail salons are generally within the PELs and are thus deemed “safe” from a regulatory standpoint, this does not mean that the nail salon is a safe environment to work in. As the National Healthy Nail Salon Alliance (“NHNSA”) notes, most PELs were first established in the 1960s “for industrial settings with an intent to protect against severe acute exposures.” Thus, PELs were not primarily aimed at protecting nail salon workers. Further, most of the PELs fail to “take into consideration the effects of a combination of multiple chemicals, or the long-term chronic effects of exposure on endpoints such as asthma, cancer or reproductive harm.” In nail salons specifically, individuals are
simultaneously exposed to a variety of toxins. Further, NHNSA points out that current PELs fail to “take into account the fact that ‘safe’ exposure levels may vary based on gender,
age, or pregnancy status of the exposed worker.” Thus, the current PELs are out-of-date and should be updated to protect the health and safety of nail technicians and combat the modest levels of toxins that are in the air in nail salons.
4. CURRENT REGULATIONS AND LEGISLATION PERTAINING TO NAIL SALONS
State governments play an active role in regulating the nail salon industry. States have the power to require nail technicians and nail salon owners to hold licenses and can oversee, inspect, and regulate nail salons. Accordingly, states are best equipped to improve the quality of life of nail salon technicians and safeguard the health and well-being of salon patrons. In New York, the Division of Licensing Services of the Department of State is responsible for licensing nail technicians and nail salons and for enacting regulations that affect the appearance enhancement industry as a whole.
Nail technicians, by virtue of bearing a license, signal to patrons that they are capable of performing manicures and pedicures. Therefore, it is crucial that nail technicians comply with licensing procedures. In New York, aside from meeting basic age and health requirements, nail technician candidates must satisfy educational and testing requirements. Candidates must learn manicure and pedicure techniques and complete courses including Safety and Health, Bacteria and Infectious Diseases, Chemical Methods of Sanitation, and Sanitary Rules and Regulations. The candidate then must pass written and practical examinations to ensure that he or she has “sufficient basic skills to safeguard the health and safety of the public.” So long as a nail technician renews his or her license within five years of its expiration, he or she will not have to complete further training or enroll in continuing education courses. This appears to be a gap in the current licensing framework that, if filled, could help safeguard patrons.
To operate a nail salon in New York, one must hold a general business license.The Secretary of State, based on his or her statutory authority to “promulgate rules and regulations which establish standards for practice and operation . . . to ensure the health, safety and welfare of the public,” can
establish rules pertaining to the sanitary conditions of nail salons. The general standard is that nail salons “shall be kept clean and in good repair.” Additionally, nail salons in New York are subject to “reasonable inspection” by the Department of Licensing’s inspection staff at any “reasonable time and without notice.” Random and regular inspections enable the State to certify that nail salons operate in accordance with the law and that such outlets are clean and safe for patrons and workers; however, how frequently nail salons in New York are actually inspected is questionable.
B. Regulation of Products Used in Nail Salons
The FDA is authorized by Congress to regulate cosmetic products. All nail products sold in the country cannot contain poisonous substances that could harm users under “customary conditions of use.” Despite this, many products contain potentially harmful materials but remain on the market because they are “safe when used as directed.” The FDA’s regulation of cosmetics is far less strict than its regulation of drugs, biologics, or medical devices. Unlike the protocol for regulating drugs, cosmetics and their ingredients, excluding color additives, are not subject to pre-market approval or testing and cannot be recalled by the FDA. Without proper testing and the possibility of recall, current regulations cannot satisfactorily protect patrons. Further, while the Toxic Substances Control Act enables the EPA to regulate toxic chemicals, cosmetics and their ingredients do not fall under its control. Instead, the FDA “regulates” cosmetics through the Federal Food, Drug, and Cosmetic Act (“FD&C Act”) and the Fair Packaging and Labeling Act (“FPLA”). Since the FD&C Act “prohibits the marketing of adulterated or misbranded cosmetics in interstate commerce,” if a product does not comply with the FPLA, which broadly requires that packages and labels provide accurate information about the contents of the product therein, it is in violation of the FD&C Act. The FDA can inspect cosmetic manufacturers and examine samples of cosmetics to determine whether a product is adulterated or misbranded. However, the FDA generally has little power to prevent dangerous products from entering the marketplace because proof of adverse health effects is required before the FDA can take regulatory action. The FDA’s decision to perform an inspection is based in part on “the type of products, the significance of . . . complaints received, the company’s compliance history, FDA surveillance and compliance initiatives, and agency resources.”
Under the FD&C Act, a product is considered misbranded unless the product bears an adequate warning. Thus, manufacturers themselves must ensure that products are safe. Further, manufacturers may use any ingredient in their products as long as “the ingredient and the finished cosmetic is safe, the product is properly labeled, and the use of the ingredient does not otherwise cause the cosmetic to be adulterated or misbranded under the laws that FDA enforces.”
The Cosmetic Ingredient Review (“CIR”) Panel also fails to properly regulate the cosmetic industry. Approximately thirtyfive years ago, industry professionals established the CIR Panel to examine ingredients in cosmetics; however, since it inception, the CIR Panel has only evaluated a fraction of ingredients. Therefore, “the vast majority [of ingredients] have not been assessed for safety by the FDA, CIR [Panel] or any other entity.”
While it appears that ingredients in cosmetics are not being inspected, some nail polish manufacturers claim to have removed toxic chemicals from products. Despite this, some of those manufacturers still produce polishes that contain the toxic trio while others have replaced the toxic trio with other harmful chemicals.
Ultimately, the cosmetics industry has “found loopholes in the alphabet soup of government agencies—the FDA, EPA, OSHA—and its own self-monitored . . . CIR [Panel], allowing for an abundance of toxic products like nail polish, acrylics, and disinfectants to still be used today.” Additionally, some states, including New York, have unsuccessfully attempted to ban the manufacture, sale, or use of products with the toxic trio.
While federal laws may not adequately regulate the manufacturing and distribution of cosmetic products, federal law does require nail salon owners to keep a Material Safety Data Sheet (“MSDS”) for each product used in the nail salon. MSDSs contain information about the risks of each product and corresponding proper responses in the event of “accidental overexposure.” Distributors and suppliers of cosmetic products containing one or more potentially hazardous ingredient must provide purchasers with the appropriate MSDSs. However, researchers have found that many nail salon owners and technicians do not know about MSDSs and most companies responsible for providing MSDSs have neither websites nor MSDSs posted online. Further, since MSDSs are generally not translated into foreign languages, nail technicians who are not fluent in English may not fully understand them.