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Chemical Compliance: Court Nullifies New York Disclosure Program

Ruling declares initiative didn’t follow state rulemaking procedures

By Lynn L. Bergeson

Many in industry questioned the legality of the program.

In a significant victory for industry, on August 27, 2019, the State of New York Supreme Court invalidated the New York Department of Environmental Conservation (NYDEC) Household Cleansing Product Information Disclosure Program. The program is an example of the newest trend in state “information disclosure” programs intended to force product manufacturers to disclose the ingredients in products sold to consumers. This article discusses the program and explains why the court rescinded it.

Background

On June 6, 2018, NYDEC released in final its disclosure program, containing the Household Cleansing Product Information Disclosure Program Certification Form and Program Policy. The disclosure program as issued required manufacturers of cleaning products sold in New York to disclose chemical ingredients and to identify any ingredients that appear on specified authoritative lists of chemicals of concern on their websites. New York stated when it issued the program that it “will be the first state in the nation to require such disclosure and the State’s program goes beyond initiatives in other states by requiring the robust disclosure of byproducts and contaminants, as well as chemicals with the potential to trigger asthma in adults and children.” NYDEC posted the program components and a response to comments at the time.

The program from the start raised significant industry concerns. First, the compliance date was quite short and manufacturers were scrambling from the beginning to understand the program and comply with the requirements. The start date was delayed in response to some of these concerns (see, New York Disclosure Program Hits a Snag).

Second, the program diverged from a similar cleaning products disclosure program enacted in California (SB 258) shortly before the New York program rolled out. The lack of alignment understandably caused considerable concern among product manufacturers, both from compliance and commercial disruption perspectives.

Third, the program was quite demanding and required a level of detail and specificity that many thought excessive. Industry expressed concern with the amount of time and effort compliance would likely require, especially in light of the lack of alignment with the California program.

Finally, many in industry questioned the legality of the program. To many, it seemed to reflect all the attributes of a final rule, but none of the procedural protections that accompany a rulemaking as part of the process in issuing the program.

The Lawsuit

In October 2018, two trade associations, the Household and Commercial Cleaning Products Association (HCPA) and the American Cleaning Institute (ACI), filed a lawsuit in state court challenging the disclosure program. They sought declaratory relief and a judgment invalidating the disclosure program on the basis that the program was a rule for which NYDEC did not comply with its State Administrative Procedure Act (SAPA) rulemaking procedures. The groups also argued that the program was established in violation of Article IV Section 8 of the New York State Constitution, was issued in excess of NYDEC’s statutory authority, and was arbitrary and irrational.

The court agreed, finding the disclosure program violated the SAPA and the state constitution. The court held that the program was a “rule” as argued by the groups and not “guidance” for which adherence to SAPA wasn’t required, as argued by NYDEC. The court found that “since there is no opt out provision whereby petitioners may choose to deviate from the program, the Disclosure Program is not mere guidance.” The program, the court concluded, was thus “null and void and the matter is remitted back to DEC with the directive to comply with SAPA.”

Discussion

The court’s decision is a decisive victory for the petitioners. Although NYDEC has the option to appeal the decision or ask the legislature to pass a law authorizing the disclosure program as written, many hope instead that NYDEC takes to heart the court’s concerns about the abuse of process and works with stakeholders to develop a workable and effective program. This path would present an important opportunity to align NYDEC’s program with California’s. Implementing a national model for ingredient communications will ultimately benefit industry stakeholders interested in ensuring compliance and better inform consumers about the information communicated when provided in a consistent manner.


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LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at lbergeson@putman.net

Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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