What Is in Your Tampon? Increasing Transparency in Menstrual Products

What Is in Your Tampon? Increasing Transparency in Menstrual Products Elianna Spitzer* CONTENTS INTRODUCTION ......................................................................................230 DISCLAIMERS .........................................................................................231 I. WHAT ARE MENSTRUAL PRODUCTS AND HOW ARE THEY REGULATED? ........................................................................231 A. Types of Menstrual Products ........................................................232 B. Toxic Shock Syndrome and the History of Federal Tampon Regulation ...........................................................................234 1. FDA Implements TSS Warning Labels .....................................237 2. FDA Implements Standardized Absorbency Chart ...................237 C. FDA Regulation Today .................................................................240 II. THE STATE OF MENSTRUAL PRODUCT RESEARCH ............................242 III. RECENT EFFORTS TO INCREASE TRANSPARENCY ............................244 A. States Pass Menstrual Right to Know Acts ...................................244 B. Federal Counterparts Stall ...........................................................246 C. Potential Limitations for Menstrual Right to Know Acts .............246 1. Federal Preemption ...................................................................246 2. The Problem with Allowing Piecemeal Legislation .................248 IV. ADDITIONAL REQUIREMENTS NEEDED TO INCREASE TRANSPARENCY ....................................................................249 A. Create a Reporting and Testing Mechanism .................................249 B. Develop Eco-Labeling Guidance ..................................................250 C. Fix the FDA’s Tampon Absorbency Chart ....................................252 CONCLUSION..........................................................................................252 229 230 Seattle University Law Review [Vol. 48:229 INTRODUCTION The average person who menstruates will bleed for an average of five days, every twenty-four to thirty-eight days, over several decades and could use thousands of disposable menstrual products1 in their lifetime.2 Menstrual products line retail shelves. They can be found in homes, bags, and bodies—but until 2021,3 manufacturers were not required to disclose the ingredients used to make these products to consumers at all. In fact, they still are not federally required to disclose menstrual product ingredients on product packaging.4 Instead, in recent years, changes to menstrual product labels have largely been the result of state legislation. In 2019, New York State passed the first Menstrual Right to Know Act, which gave manufacturers eighteen months to begin disclosing menstrual product ingredients on boxes sold within the state.5 California passed its own disclosure law in 2020.6 In addition to increasing transparency through ingredient disclosures, states are legislating to end menstrual product taxes and to increase access.7 Amid these efforts to increase menstrual equity,8 it is important to evaluate whether changes to state laws are the appropriate route for a product historically regulated by the FDA. It is also important to consider whether these laws might be more effective if taken a step further. This Note argues that menstrual products deserve increased scrutiny and that legislation can support important changes to further the health of * J.D. Candidate 2025, Seattle University School of Law. Thank you to the tireless editors who worked on this Note. Special thanks to Colin Patzer for his endless support. The opinions expressed in this Note are my own, and any errors are mine as well. 1. Kristen Upson, Jenni A. Shearston & Marianthi-Anna Kioumourtzoglou, Menstrual Products as a Source of Environmental Chemical Exposure: A Review from the Epidemiologic Perspective, 9 CURRENT ENV’T HEALTH REP. 38, 38 (Mar. 17, 2022), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9876534/ [https://perma.cc/RYY9-DBVG]. 2. This number could be lower if the menstruator regularly relies on reusable products like period underwear or menstrual cups. 3. New York’s menstrual product act went into effect eighteen months after it was signed into law in late 2019. See Estrella Jaramillo, Cuomo Signs Bill Making New York the First State to Mandate Ingredient List for Tampons, FORBES (Oct. 11, 2019), https://www.forbes.com/sites/estrellajaramillo/2019/10/11/cuomo-signs-bill-new-york-first-state-to-mandate-ingredient-list-for-tampons/. 4. The Food and Drug Administration (FDA), which does require some specifics in terms of labeling on some menstrual product packages, does not require ingredient disclosure. See 21 C.F.R. § 801.430 (2024). 5. See Jaramillo, supra note 3. 6. CAL. HEALTH & SAFETY CODE § 111822.2 (West 2021). 7. See PERIOD EQUITY, AM. CIV. LIBERTIES UNION, THE UNEQUAL PRICE OF PERIODS: MENSTRUAL EQUITY IN THE UNITED STATES, https://www.aclu.org/wp-content/uploads/legal-documents/111219-sj-periodequity.pdf [https://perma.cc/CBM9-EY36] (last visited Aug. 18, 2024). 8. Id. (explaining that Jennifer Weiss-Wolf coined the term “Menstrual Equity,” which refers to the idea that without laws and policies that ensure menstrual products are safe and accessible, we cannot have a fully equitable and participatory society). 2024] What Is in Your Tampon? 231 menstruators in the United States. In delving into the history of the tampon and the Toxic Shock Syndrome Crisis of the 1980s, this Note also aims to highlight the importance of product safety and regulation, particularly as new products enter the market. Parts I and II provide an overview of the menstrual product market, including the history of FDA regulation and more recent research efforts. Part III evaluates efforts to increase menstrual product transparency through state and federal legislation. Part IV proposes additional regulations to increase transparency and consumer safety, focusing on eco-labeling, fixing absorbency charts, and legislating at the federal level. California and New York’s laws are an important step toward increasing consumer awareness and autonomy, but they are just a start. Significant changes are needed to combat existing menstrual stigma, achieve future equity, and ensure product safety. DISCLAIMERS This Note intentionally uses non-gendered language as a way to subvert harmful societal norms that ignore menstruating individuals who do not identify as “women.” However, this Note will necessarily rely on less inclusive sources; many of the cited sources will refer to menstruating individuals as “women.” Additionally, this Note does not address menstrual product accessibility, even though access to period products remains a barrier for menstruating individuals around the world.9 A significant amount of scholarly work has been devoted to increasing accessibility as a means of reducing menstrual injustic (...truncated)