Attack Of The Hair Resources Board

JAN. 19, 2011

The California Air Resources Board (CARB) can be a scary place. Failing to file a diesel emissions facility report can earn a company $30,000 in fines. Selling a motorcycle that doesn’t meet state air regulations – even when doing so is the direct result of a mistake made by another state agency – can cost a company $90,000 in fines. And don’t even think about repeatedly violating air pollution laws, or the board will simply throw you in jail and, while they’re at it, get the district attorney to set bail at an impossible-to-meet $150 million. It’s no wonder that a couple years ago one Oceanside off-road manufacturer, fed up with CARB’s endlessly needling and fining his company, called CARB a “mob enforcer” at one of its hearings.

This is why I found the new Advisory Number 422 sent out by CARB’s enforcement division to be such a chilling document (click here for a PDF). Dated January 2011 but made public on Jan. 18, the memo went out to “Manufacturers, Distributors and Retailers of all Consumer Products.” Specifically, the advisory concerns regulations governing “Hairspray/Hair Styling Products.”

What, you didn’t know CARB – created back in 1967 to regulate mobile pollution sources like trucks and automobiles – was also interested in hair care products? Well, they are. The Air Resources Board takes its mission – “To promote and protect public health, welfare and ecological resources through the effective and efficient reduction of air pollutants while recognizing and considering the effects on the economy of the state” – so seriously that virtually nothing in society, including the Alberto VO5, escapes its scrutiny.

The Air Resources Board was something of a favored child to the Schwarzenegger Administration. After Gov. Arnold Schwarzenegger signed AB32, the board took on even more powers as the ultimate administrator – and enforcer – of the state’s landmark new greenhouse gas regulations.

Even during hard times, the agency scored more than half a billion dollars in the 2009-10 state budget. And the good times seem to be back – Gov. Jerry Brown didn’t just reappoint controversial Mary Nichols as CARB chairman (her word, not mine), but proposed raising ITS 2011-12 budget to more than $650 million. Given that kind of support, it’s only logical that CARB would stretch its regulatory muscles now and then.

“The purpose of this advisory is to clarify the definitions for hair spray products verses [sic] hair styling products,” states the advisory. “Products manufactured on or after December 31, 2006 that are both a styling and finishing product fall under the hairspray category only if they make claims to hold, retain, and finish the hair style for a period of time.”

Apparently, over the last four years various manufacturers have been stretching the definition of hairspray to limits that make CARB rather queasy. “Changing the label of a hair styling product by adding ‘finish’ or ‘finishing spray’ to the statement of identity does not qualify the product as a hairspray and compromises the intent of the regulation which could result in less emission reductions than anticipated for the category,” warns the advisory.

Put simply, at least 55 percent of “hairspray” must be volatile organic compounds (VOC), while “hair styling product” must contain at least six percent VOC by weight. Also, “products that claim to enhance, rejuvenate or fix the hair style will not be considered to satisfy the criteria for hairspray unless it is clear the products are to be used after the hair is styled to maintain and hold the hair style,” adds the advisory.

Get all that? Look, while it’s amusing to read about hair care products in all their bureaucratic legalese glory, the advisory contains one sentence near the end that will not make anyone smile: “We will be taking a closer look at the applications and directions for use on hair care products in the near future and caution you to view the presentations made on your labels for these products.”

This single statement has wide-ranging – and potentially expensive – ramifications for any store or salon selling hair spray or hair spray-like products. Put on the wrong label, get casual about calling something hair spray when it actually doesn’t contain the legal VOC formula, and the fines could reach the stratosphere.

This will happen. I’ve watched CARB prosecute small businesses across the state for doing far less.

- Anthony Pignataro

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