California enacted legislation, which will take effect on January 1, 2020, requiring manufacturers to disclose certain chemical ingredients in their cleaning products. New York enacted a similar program, but a court recently overturned it, and whether or how New York will seek to address the court’s concerns is unknown.
California The Cleaning Product Right to Know Act requires manufacturers of designated cleaning products to disclose certain chemical ingredients on the product’s label and website. A “manufacturer” is defined as “a person or entity who manufactures the designated product and whose name appears on the product label” and also as “a person or entity who the product is manufactured for or distributed by, as identified on the product label pursuant to the federal Fair Packaging and Labeling Act.” The online disclosure requirements apply to a “designated product” sold in California on or after January 1, 2020, and the product label disclosure requirements apply to a “designated product” sold in California on or after January 1, 2021. Products that do not meet these requirements by the specified time will be prohibited from sale in California. Under the act, a “designated product” is “a finished product that is an air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic, or institutional cleaning purposes.” Excluded products include personal care products such as toothpaste, shampoo and hand soap; trial samples of designated products that are not packaged for individual sale, resale or retail; and certain industrial products. The act requires manufacturers of “designated products” sold in California to disclose on the product label certain “intentionally added ingredients,” which the act defines as “a chemical that a manufacturer has intentionally added to a designated product and that has a functional or technical effect in the designated product, including, but not limited to, the components of intentionally added fragrance ingredients and colorants and intentional breakdown products of an added chemical that also have a functional or technical effect in the designated product.” If any of the product’s “intentionally added ingredients” appear on a “designated list,” then the manufacturer is required to disclose the ingredient on the product label. A “designated list” is any of the more than 20 state, federal and international lists enumerated in the act (including California’s Proposition 65 list of more than 900 chemicals) that identify certain chemicals as causing human health or environmental harm, including any subsequent revisions to those lists when adopted by the authoritative body. However, manufacturers are authorized to protect certain chemicals from disclosure as “confidential business information.” The act defines “confidential business information” as “any intentionally added ingredient or combination of ingredients for which a claim has been approved by the federal Environmental Protection Agency for inclusion on the Toxic Substances Control Act (TSCA) Confidential Inventory, or for which the manufacturer or its supplier claim protection under the Uniform Trade Secrets Act (Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code) as required by Section 108955.” Rather than disclose a chemical ingredient that qualifies as “confidential business information,” the act authorizes a manufacturer to use the generic name of the protected ingredient on the product label. New York Recently, the New York Supreme Court invalidated the Household Cleansing Product Information Disclosure Program (NY Program) established by the New York State Department of Conservation. Household and Commercial Products Association v. NY State Department of Environmental Conservation, Index No. 06216-18; RJI No. 01-46-18-ST9885 (Sup. Ct. Albany Cty. Aug. 27, 2019). In response to the challenge brought by two trade associations, the court found that the NY Program was enacted in violation of the State Administrative Procedure Act. The court rejected the state’s argument that the NY Program was merely “guidance.” Instead, it held that the NY Program was a “rule” that should have been enacted in accordance with the Administrative Procedure Act. The state now has the option of appealing or seeking to have disclosure requirements enacted through a rulemaking process. Critics of the NY Program have asserted that New York, unlike California, failed to appropriately consider the concerns of manufacturers and other stakeholders when enacting its disclosure requirements. The NY Program attempted to implement an existing regulation requiring “[m]anufacturers of household cleansing products distributed, sold or offered for sale” in New York to provide to the Department of Conservation Commissioner “such information regarding such products as the commissioner may require, in such form as may be prescribed by the commissioner.” NYCRR Part 659.6. Neither that regulation nor the authorizing statute defines “manufacturer.” But the NY Program defined manufacturer as “any person, firm, association, partnership, limited liability company, or corporation which either produces, prepares, formulates, or compounds a covered product and whose name appears on the product label, or which distributes a covered product, and is identified on the product label as the person or entity for whom the product is manufactured pursuant to the federal Fair Packaging and Labeling Act.” The existing regulation defines “household cleansing products” to include “soaps and detergents containing a surfactant as a wetting or dirt emulsifying agent and used primarily for domestic or commercial cleaning purposes, including but not limited to the cleansing of fabrics, dishes, food utensils and household and commercial premises.” Excluded from the definition are “foods, drugs and cosmetics, including personal care items such as toothpaste, shampoo and hand soap”; “products labeled, advertised, marketed and distributed for use primarily as pesticides, as defined in Article 33 of the Environmental Conservation Law”; and “cleansing products used primarily in industrial manufacturing, production and assembling processes.” Without following the legal process for enacting a rule, the NY Program stated that a manufacturer of cleaning products sold in New York was required to (1) disclose on its website detailed information about the products and their ingredients and (2) submit a certification form to the Department of Conservation, signed by a senior management official, certifying the accuracy of the information disclosed on the website. While the litigation was pending, the state was reportedly not enforcing the NY Program. So far, the state has not disclosed how it will react to the program’s invalidation.