Pepperdine Law Review Volume 36 Issue 4 Article 5 5-15-2009 Government Tan Lines: Examining the Reach and Effectiveness of Federal and State Efforts to Protect Consumers from the Dangers of Indoor Tanning Michelle Kay Pulley Follow this and additional works at: https://digitalcommons.pepperdine.edu/plr Part of the Administrative Law Commons, and the Health Law and Policy Commons Recommended Citation Michelle Kay Pulley Government Tan Lines: Examining the Reach and Effectiveness of Federal and State Efforts to Protect Consumers from the Dangers of Indoor Tanning, 36 Pepp. L. Rev. Iss. 4 (2009) Available at: https://digitalcommons.pepperdine.edu/plr/vol36/iss4/5 This Comment is brought to you for free and open access by the Caruso School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Law Review by an authorized editor of Pepperdine Digital Commons. For more information, please contact [email protected], [email protected], [email protected]. Government Tan Lines: Examining the Reach and Effectiveness of Federal and State Efforts to Protect Consumers from the Dangers of Indoor Tanning I. INTRODUCTION II. HISTORY AND BACKGROUND OF INDOOR TANNING REGULATION A. History of Indoor Tanning B. Initial Government Response C. Developments After the InitialRegulation III. CURRENT STATE OF INDOOR TANNING REGULATION A. Federal Regulation: The Shared Responsibilities of the FDA and the FTC B. State Regulations IV. FUTURE REGULATION: PREDICTIONS AND RECOMMENDATIONS A. Tougher FDA Regulations B. State Level Regulation C. The Possibility of a Nationwide Minimum Age or Nationwide Ban V. ALTERNATIVES TO REGULATION A. PromotingSelf-Regulation Including Education and Trainingfor Salon Operators B. Educationfor Consumers C. PromotingSafer Alternatives to Tanning D. The Possibilityof a Tanning Tax E. Changing the Perceptionthat Tan Skin is Desirable VI. CONCLUSION 1161 I. INTRODUCTION Gone are the days when fair skin was considered a sign of beauty and wealth.' Instead, these days many seek the "healthy glow" of tan skin.2 In order to obtain this bronzed look, color seekers go lie outside in the sun or commit to the increasingly popular alternative of lying in a tanning bed.3 Indoor tanning beds allow consumers to tan at their convenience in a matter of minutes rather than lying out for hours in the sun.4 In the United States alone, the indoor tanning industry generates over five billion dollars annually,5 and some thirty million people tan indoors each year.6 In recent years, tanning has become increasingly popular with teenagers, especially teen girls.7 Tanning's rising popularity is largely attributable to the media message that tan skin is beautiful. With bronzed beauties gracing the covers of magazines and filling major roles in television shows and movies, that message is hard to miss.' 1. Prior to the twentieth century, fair skin was considered a symbol of status and something to be desired. See Tanning Skin Care, History of Sun Tanning, http://web.archive.org/web/ 20070810041205/www.tanningskincare.com/index.phpoption=comcontent&task-view&id=20&It emid=87 (last visited Apr. 27, 2009) [hereinafter History of Sun Tanning]. The primary reason was that dark skin was often linked to the role of servants and laborers, while the wealthy often had paler skin tones. Id. Women sometimes took drastic measures to retain their fair skin and to make their skin look even paler. Id. Women generally used clothing and hats to avoid sunburns, and in the latter part of the nineteenth century parasols became popular "both as a means of sun protection and as a fashion accessory." Michael R. Albert & Kristen G. Ostheimer, The Evolution of Current Medical and Popular Attitudes Toward Ultraviolet Light Exposure: Part 1, 47 J. AM. ACAD. DERMATOL. 930, 930 (2002) [hereinafter Albert & Ostheimer I]. Magazines informed women about preserving their complexions using specific products and homemade recipes, and even recommended these remedies for men. See id. at 930-3 1. However, toward the end of the nineteenth century, attitudes about skin color began to change. See id. at 931. Part of the reason was that women became "engaged in many activities that resulted in significant sun exposure." Id. According to an article in 1900: The summer girl of 1900 is ready to take a spin in an automobile; or to speed forth on her bicycle; or to hold her own with a racquet in her hand at the tennis nets ... or to take her ocean bath, and with sturdy strokes to swim and disport herself like a mermaid in her abbreviated bathing costume; or to row and sail and yacht from early mom until late at night, letting the sun leave what impress upon her it can or may. Id. (quoting G.P. Murray, The Summer Girl's Complexion, 33 HARPER'S BAZAR 444-45 (1900)). Additionally, many people began to view tanned skin as a sign of health. See id. Several sources credit Coco Chanel for starting the trend of tanning in the 1920s. See, e.g., History of Sun Tanning, supra. A leader in the fashion world, Chanel unintentionally developed a tan while on vacation and the trend of tanning was bom. Id. 2. Skin tans as a result of exposure to ultraviolet ("UV") radiation, which generally comes from the sun. See Mayo Clinic, Sun Damage: The True Priceof Tanning, May 12, 2006, http://www.maf foundation.org/medialpdf/2006-05-12_True-Price-Tanning.pdf [hereinafter Sun Damage]. Contrary to the idea that a suntan is healthy, both sunburns and suntans are a sign of injury to the skin. See id. Sunburns are more than just painful redness, which eventually fades: Depending on the severity of the bum, the dead, damaged skin may peel away to make 1162 [Vol. 36:1161, 2009] Government Tan Lines PEPPERDINE LAW REVIEW room for new skin cells. Though the symptoms of sunburn may fade after several days, the damage to your skin remains. Sun exposure that is intense enough to cause a burn can also damage the DNA of skin cells. This damage sometimes leads to skin cancer. Id. Suntans are not any better: A suntan is the result of injury to the epidermis, the top layer of your skin. A tan develops when UV light accelerates the production of melanin. Melanin is the dark pigment in the epidermis that gives your skin its normal color. The extra melanin-produced to protect the deeper layers of your skin---creates the darker color of a "tan." A suntan is your body's way of blocking out the ultraviolet rays to prevent further injury to the skin .... Id. Even those who have naturally darker skin and are less likely to bum are still subject to the risks of overexposure to the sun: [E]ven those with darker skin types can bum with repeated exposures to UV light. This intense exposure can produce negative effects in the skin, including dry, rough patches, wrinkling and other skin disorders. So even though people with darker skin can tan and tolerate longer periods of sun exposure without "burning," the sun can still cause skin damage. Id. 3. See History of Sun Tanning, supra note 1;see also Indoor Tanning-Magnitude of the Health Issue, 5 J. DRUGS DERMATOL. 193 (2006) [hereinafter Magnitude of the Health Issue] ("Reports indicate that between 1986 and 1996 there was a three-fold increase in the percentage of Americans using tanning beds."). Indoor tanning beds use special lamps to "mimic two types of UV radiation, UVA and UVB, emitted by the sun." Jennifer Saranow, States Crack Down on Indoor Tanning-Amid Skin-Cancer Concerns, New Laws Restrict Access; Weighing the Health Risks, WALL ST. J., Jan. 26, 2005, at D1. The most common type of indoor tanning consists of lying in "tanning beds," which contain light bulbs that emit UV radiation. Id. Depending on the region of the country, the cost of each tanning session ranges from five to ten dollars. Id. 4. See History of Sun Tanning, supra note 1. 5. See Paul Vitello, Skin Cancer Up Among Young; Tanning Salons Become Target, N.Y. TIMES, Aug. 14, 2006, at BI. According to the Indoor Tanning Association (ITA), the indoor tanning industry "is adding about 1,000 new customers monthly and will grow to $7.5 billion in annual revenue" during the next few years. Saranow, supra note 3. 6. Id. There are around twenty thousand indoor tanning salons and about the same number of additional locations-such as health clubs and spas-which have one or two tanning beds. Judie Bizzozero, State of the Industry Report '07, LOOKING FIT, Sept. 1, 2007, available at www.lookingfit.com/articles/operations/79h514453055074.html. Most indoor tanning salons in the United States are considered small businesses, and most of them offer "four to five levels of tanning and a sunless unit." Id. The indoor tanning industry "provides jobs for approximately 160,000 employees annually." Id. The Midwest and Southeast portions of the United States have the most indoor tanning salons per capita "with Ohio, North Carolina, Michigan, South Carolina, Illinois, Indiana and Florida leading the charge." Id. 7. Of the projected thirty million people who tan indoors every year in the United States, an estimated 2.3 million are teenagers. American Academy of Dermatology Association Commends President Bush for Signing Tanning Accountability and Notification (TAN) Act; New Law Designed to Warn Americans About Risks of Indoor Tanning Devices, PR NEWSWIRE, Sept. 28, 2007 [hereinafter AADA Commends President). Further, a study in the Archives of Pediatrics and Adolescent Medicine found that nearly one in three Caucasian teenage girls tan indoors. Saranow, supra note 3. 8. See, e.g., Hays Burchfield, Skin Deep, THE STAR, Mar.