*The views expressed in this article do not represent the views of Santa Clara University.
Credit: Unsplash - Lucas Lenzi
After two years of shelter-in-place, washing my groceries, and fearing all crowds, with crop tops in style and masks suddenly optional, the summer of 2022 was the perfect time to get a new tattoo. My idea to get fresh ink was not a unique one. According to an Industry Research Report by IBIS World, as of 2021, 46% of all Americans have at least one tattoo, and there are approximately 29,805 tattoo parlors across America. While waiting in the back of one such shop tucked into San Francisco’s Mission District, I wondered what legal troubles this 3 billion dollar industry faced amidst a centenary global pandemic.
Surprisingly, the tattoo industry in the United States is largely unregulated. There are no federal guidelines or standards for tattoo ink or pigment. Although the Food and Drug Administration (FDA) acknowledges the health risks associated with unregulated tattoo pigment, it has left tattoo regulation to the state and local levels. As a result, state regulation greatly varies. According to the Center for Disease Control (CDC), currently, 13 states do not require tattoo artists to wear gloves, 11 states have no sterility standard requirements, and 29 states do not require tattoo artists to disclose any risks to those they inject with ink.
However, most states are increasing their regulations. In 2011 California finally passed the “Safe Body Art Act,” which required artists to register with state Health Officers so they may inspect and enforce shop sanitation. The act sets forth requirements such as washing hands before injecting ink, obtaining informed consent from clients, and logging every sanitation cycle. Even with these new state regulations, we are still very far away from national safety standards.
The biggest concern my tattoo artist repeated on that fateful summer afternoon was that pigment is still fully unregulated. Her concern was spurred on by looking at some of my ink, which faded way before it should have, and was injected under different laws. Ink is left alone because the FDA considers it “cosmetic,” and cosmetics for the skin are unregulated by the FDA. Instead, the FDA only steps in after ink contamination spreads.
Although most pigments are industrial-grade colors, ink in your dermis could just be regular ink from fountain pens. Whatever pigment your artist uses can drain from your dermis, or the fourth layer of skin where tattoos are placed, deeper into your body. The risk of long-term exposure to this ink has not yet been fully studied.
Despite a clear history of failing to federally regulate the tattoo industry, the United States quickly stepped in when COVID-19 showed up – despite the First Amendment constitutional barrier. Initially, closing tattoo shops seemed obvious. Tattooing is an industry where blood is exposed; therefore, during a global pandemic, it could be expected the shops would close. However, the tattoo industry is unique because according to the Ninth Circuit in Anderson v. City of Hermosa Beach, in addition to a tattoo itself, both the process of tattooing and the business of tattooing are protected forms of expression under the First Amendment. Therefore, to close all tattoo parlors, the state needed a valid “Time, Place, or Manner Restriction,” meaning the regulation had to be content-neutral and rationally based. In December of 2020, the U.S. District Court in Mitchell v. Newsom found closing all tattoo shops during the pandemic to be a valid regulation and they all finally closed their doors, many not opening until the summer of 2022.
The next question is if what we saw with COVID-19 may indicate what to expect from the federal government in the future. When it mattered, the U.S. stepped in, and perhaps they will do the same with our ink. If they do not, we may see more cases such as Chester v. Deep Roots Alderwood, LLC , where the court found no negligence on behalf of a tattoo parlor and artist who used contaminated ink. Because no law created a duty to use sterile ink, there was no duty of reasonable care to breach. And the plaintiff, who paid to ultimately be injected with bacteria and was resistant to the antibiotics, now suffers from chronic kidney disease with no legal respite. We cannot know if current government representatives will regulate tattoos, but as future lawyers, we may be the generation to fill the gap. As more Americans go under the needle, the need for ink regulations become more vital to the industry and our society.