As interest continues to mount among consumers in knowing what chemicals they are exposed to in their daily lives, New York recently became the first state to announce that it is implementing a disclosure requirement for ingredients in household cleaning products. Under the Household Cleansing Product Information Disclosure Program, which will be administered by Department of Environmental Conservation, manufacturers of such products will be required to post on their websites information identifying all of the ingredients and impurities in their products, including those that are chemicals of concern.
The state also intends to work with the Interstate Chemicals Clearinghouse to develop and maintain a database of links to the information disclosed on companies’ websites. NYDEC launched the new program by issuing a draft Household Cleansing Product Information Disclosure Certification Form and Guidance (hereinafter the “Draft Guidance”), which contains detailed instructions for posting the information that the state intends to require.
Authority for the disclosure program derives from Environmental Conservation Law Article 35 and New York Code of Rules and Regulations Part 659, which authorize NYDEC to require manufacturers of domestic and commercial cleaning products distributed, sold, or offered for sale in New York State to furnish information regarding such products, including “a list naming each ingredient,” “the content by weight of each ingredient,” and “the nature and extent of investigations and research performed by or for the manufacturer concerning the effects on human health and the environment of such product[s] or such ingredients.” Pursuant to this provision, NYDEC’s Draft Guidance directs manufacturers to disclose product ingredient information on their websites in a manner that is obvious, noticeable, and readily accessible to the public, and provides that “information disclosed under this program must not be restricted from indexing by search engines, such as Google and Bing.” Under the Draft Guidance, information to be disclosed includes all intentionally added ingredients, as well as all ingredients present only as an unintentional consequence of manufacturing information, and the disclosure requirement extends to ingredients present in only trace quantities. Disclosure will also have to include whether the product contains fragrance ingredients (including ingredients added to mask the scent of other ingredients in so-called “unscented” products); for each ingredient, the product manufacturer will be required to disclose the CA Index Name and CAS Registry Number, the percentage of content by weight, the role of the ingredient, whether it has been subject to the GreenScreen® comparative chemical hazard assessment, and whether it is a nanomaterial.
Although the information disclosure requirement is comprehensive, the draft Guidance permits the withholding of “confidential business information.” In that case, the Draft Guidance provides that while the nature and degree of the information withheld should be disclosed, the information should not be submitted to the Department or posted on the web. The Draft Guidance contains detailed instructions concerning disclosures in cases where some ingredient information has been withheld as confidential, although neither the Draft Guidance nor the authorizing regulations contain any definition of CBI. However, the regulations do refer to withholding from public disclosure information that “the manufacturer determines, subject to the approval of the commissioner, would be, if disclosed, seriously prejudicial to the manufacturer's legitimate interest in trade secrets and economics of operation.” It appears therefore that it is left to the manufacturer’s discretion, at least initially, to determine precisely what information constitutes CBI. We anticipate that stakeholders submitting comments will seek clarification concerning the scope of this disclosure exemption.
In a press release about the new program, Governor Cuomo announced that it will serve as a pilot for potential expansion to other consumer products of concern, such as personal care or children’s products. Companies should also be aware that while New York would be the first state in the nation to require these disclosures for household cleaners, legislation is pending in California (SB 258, the Cleaning Products Right to Know Act) that would require disclosure of similar types of information.
Comments on the Draft Guidance are due by June 14. Manufacturers will be required to post all required information six months following publication of a final Guidance Document.