New York Tries to Rein In the Laser Hair Removal Industry

(Bloomberg) -- When the coronavirus arrived in the U.S., grooming services like hair stylists and nail salons were forced to shut down. So too were purveyors of laser hair removal, among the most popular cosmetic treatments in America.

Unlike a cut, coloring or mani-pedi, however, using lasers for hair removal straddles the line between personal care and medical procedure. It also has a history of occasionally causing serious physical harm.

In New York City, laser hair removal locations seemed to be everywhere before Covid-19 struck, having grown more attractive to young people thanks to daily deal websites and ubiquitous advertising. What wasn’t usually publicized was that New York is the only state where licensing and even training isn’t necessarily required to operate light-emitting devices that can cause discoloration, burns or worse.

In 44 states, laser hair removal is considered a medical treatment requiring the supervision of a doctor, nurse or physician assistant (though the person operating the laser can in some cases be unlicensed). In five states, laser hair removal is subject to some other form of regulation. But in New York, it’s been the wild west. Now, thanks to a bill proposed this month in the state legislature in Albany, licensing and education requirements may be on the way.

For many of these businesses, the timing couldn’t be worse. Personal care providers that managed to survive a year of lockdowns, limits on customer traffic and consumer fear now face the expense of complying with potentially expensive and burdensome regulations—rules first proposed long before anyone heard of Covid-19. For some, it may be the last straw.

Before the pandemic, there were hundreds of self-described salons or spas offering laser hair removal in New York (there’s no reliable data on the precise number of businesses). In New York City, many are storefront locations, some owner-operated and others chains. Doctors (especially cosmetic dermatologists and plastic surgeons) also perform the procedure in their offices.

The new legislation, the product of years of industry infighting and false starts, would require salons and technicians be licensed by the state. It mandates state-approved training, examinations and continuing certification by an accredited industry group. Laser use must be performed under the “direction and supervision” of licensed physicians, though the doctor need not be present for each procedure. And in addition to registration fees, salons must hold a minimum $1 million liability insurance policy.

It’s this last item that may help drive out less reputable providers, according to salon owners, medical experts and attorneys.

“Lives are ruined by unsupervised, untrained and unskilled technicians performing these procedures,” said ;Dr. Roy Geronemus, past president of the American Society for Laser Medicine and Surgery. Hayley Greenberg, a personal injury lawyer, said the insurance requirement “will solve a lot of problems.”

“Insurance companies know how to force people to comply,” she said. “The insurance industry will self-regulate and keep raising prices on companies that are bad.”

Christian Karavolas, owner of Manhattan laser hair removal salon Romeo & Juliette, largely agreed. Though he once opposed efforts to regulate his industry, he said his stance has changed—except when it comes to requiring the employment of physicians, an expense he deems unnecessary if licensing and training are going to be required.

A sampling of lawsuits filed against salons and salon chains over the past few years reveals a big reason for the new legislation.

Allegations range from “sustained serious burns” to the more common “permanent scarring and discoloration.” But the absence of significant regulation in New York has meant there’s no comprehensive record-keeping of bad outcomes. Personal injury lawyers contend the suits that do get filed are just the tip of an iceberg.

Greenberg, a partner at Greenberg & Merola in New York City, said she’s turned away uncounted potential clients, either because their injuries didn’t require hospitalization or because the business didn’t carry insurance that could satisfy a claim.

Personal injury cases are taken on contingency, so lawyers must weigh the cost of pursuing a case against the likelihood of financial recovery. If a laser removal salon doesn’t carry insurance, even a seriously injured person might never collect—and months of legal work would go uncompensated.

When it comes to liability insurance, New York again stands apart. Professional Program Insurance Brokers, which sells policies to medical spas, prices them the same way in every state but New York, where they cost about 20% more because of claims arising from laser hair removal, said Susan Etter, the company’s president.

New York has a reputation for being one of the more regulated states, so its failure to oversee the use of potentially dangerous medical devices by non-medical professionals might seem surprising. This anomaly stems from an attempt by the state to prosecute a Bronx beauty parlor operator for practicing medicine without a license—in 1935.

Mary Lehrman was prosecuted for using electrolysis to remove hair from the lip of one Gertrude Budoff, an investigator with the Department of Education. The court ruled in People v. Lehrman that removing hair wasn’t practicing medicine, regardless of the technology used, and an appellate court later agreed. Some 86 years later, this is still the case in New York.

When laser hair removal arrived in the late 1990s, medical boards in most states classified it as the practice of medicine, said Michael Byrd of ByrdAdatto, a Dallas law firm that represents industry trade group American Med Spa Association. Most states define medical practice as anything that affects living tissue, he said.

In laser hair removal, pigment in the hair absorbs a pulse of light which—if the correct device is used and it’s calibrated correctly—destroys the capillary that feeds the follicle without injuring surrounding tissue.

In New York, the laser hair removal industry has opposed efforts to classify it a medical practice. Attempts to pass a law requiring non-medical training, as the state does for services ranging from haircuts to waxing, have also failed. A 2017 bill that would have established a professional license requirement was even opposed by the state’s doctors—who said it was too weak. 

Then in 2019, the logjam began to break. That’s when the powerful physicians’ lobby, the Medical Society of the State of New York, lifted its previous opposition to the use of lasers for hair removal by a non-physician, said Dr. Andrew Kleinman, a plastic surgeon and former president of Westchester County, New York’s medical society.

By February 2020, a version of the bill incorporated the provision sought by the Medical Society—the “direction or supervision” clause. The amended bill “seems to be moving in the right direction,” said Morris Auster, the society’s chief legislative counsel.

But Patrick O’Brien, another lawyer with ByrdAdatto, said the “direction or supervision clause” is vague, in part because the legislation doesn’t describe in detail the relationship between doctor and salon. He added he wasn’t aware of a national laser industry group able to provide the continuing accreditation required by the bill. (The office of its sponsor, Assembly Member Amy Paulin, said the scope of the supervision clause is already defined under state law and that the Society for Clinical and Medical Hair Removal offers education and certification programs.)

Despite having more robust regulations than New York, other states see their fair share of laser injury lawsuits, too. And while news coverage tends to focus on lurid mishaps ascribed to technician error, less attention is paid to the devices themselves, how expensive they are and how that contributes to customer injuries.

Bill Moore is the owner of Advanced Skin Fitness in Dallas and president of  the Society for Clinical and Medical Hair Removal. He pushed for a 2012 Texas law requiring licensing and continuing education for non-medical operators, and was even involved with proposed language in earlier versions of the New York legislation.

The critical factor in laser hair removal is the wavelength of light emitted, he said. A well-trained and ethical practitioner will own at least two devices—a 1064 nanometer version for dark skin and a 755 nm machine for treating light skin. “Somewhere in the middle, you’ll overlap,” Moore said.

But the best, safest option is to own three types of devices. The third is the 810nm laser, which is best for skin in the middle of the spectrum. But despite different lasers being best-suited for only a portion of skin tones, the U.S. Food & Drug Administration has cleared all three for use on all skin types. Moore warned that using the wrong laser can at best fail to prevent hair growth, and at worst cause injury.

“If you don’t understand the physics, you’ll injure someone,” he said.

In a statement, the FDA didn’t directly address the issue, saying only that “the agency balances the benefits and risks to patients from the use of a device based on the totality of the scientific evidence. As with any medical product, some risks may become evident in the post-market setting after approval.”

A cheaper, riskier option is intense pulsed light, or IPL, which emits broad-spectrum light and uses filters to try and mimic a laser’s specificity. “These devices are very dangerous,” Moore said. “They have a broader range of targets in the skin and commonly burn patients.”

But buying two types of lasers (let alone three) is an expensive proposition for a laser hair removal salon—one that forces some to make do with just one. Moore said U.S.-made, FDA cleared devices he buys for his spa cost between $90,000 and $175,000 each, though lower-cost, imported lasers not cleared by the FDA can cost as little as $5,000. 

The legislation New York is considering may drive out the worst offenders. But it’s unlikely to render the business entirely safe, industry experts said. Consumers will need to be wary of unscrupulous salon operators who take risks with substandard devices in order to offer cheaper rates, or doctors who aren’t specialists offering the service to boost profits.

Dr. Anne Chapas, medical director of Union Square Dermatology in Manhattan, said there’s another, insidious reason why there isn’t more public outcry over botched procedures and unethical salons.

“I’ve seen so many patients with complications after laser procedures who won’t even report the business to the Better Business Bureau,” she said. The victims “all feel embarrassed. They say, ‘Why did I go? It looked reputable. I didn’t know these things could go wrong.’”

“It’s not the patient’s responsibility to make sure that a person is qualified to use a medical device on them,” Chapas said. “State government regulates the practice of medicine and other professions so that the public can be sure that they are being properly treated.”

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