On January 9, 2019, the New York Department of Environmental Conservation (NYDEC) announced it was delaying its enforcement of the New York Household Cleansing Product Information Disclosure Program (NYDP) to October 2, 2019. NYDEC’s announcement was published in the Environmental Notice Bulletin. This article explains the significance of this development.
On June 6, 2018, NYDEC released its disclosure program setting forth extensive requirements for manufacturers of certain consumer cleaning products to disclose information regarding the ingredients in those products. Manufacturers are required to identify all ingredients and impurities in their products, including those that are chemicals of concern, as well as their content by weight in ranges, and post the information on their websites. Authority for the program derives from Article 35 of the Environmental Conservation Law.
The NYDP calls for grouping information into the following categories:
• All ingredients intentionally added to a covered product should be disclosed, including those present in trace quantities, unless they are withheld as confidential business information (CBI);
• All ingredients present only as an unintentional consequence of manufacturing and present above trace quantities should be disclosed where the manufacturer knows or should reasonably know of such ingredients, impurities, or contaminants, unless they are withheld as CBI; and
• All ingredients present only as an unintentional consequence of manufacturing and present in trace quantities should be disclosed where the manufacturer knows or should reasonably know of such ingredients, impurities, or contaminants must meet certain criteria.
The NYDP significantly differs from California’s Cleaning Product Right to Know Act of 2017 (S.B. 258), which was signed into law in October 2017 with partial implementation required in 2020. Despite New York’s program following eight months after California’s, NYDEC intended to require the first phase of its implementation six months earlier, or by July 1, 2019. California describes and requires the disclosure of intentionally added ingredients 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.” California also requires identification of nonfunctional constituents — certain substances that are incidental components of intentionally added ingredients, breakdown products of intentionally added ingredients, or byproducts of the manufacturing process that have no functional or technical effect on the designated product. Requirements are much more clear-cut under California’s program than New York’s; manufacturers will be able to label their products with a high degree of accuracy. Under the NYDP, it is unclear what a manufacturer should reasonably know of impurities or contaminants present only as an unintended consequence of manufacturing.
Unlike California, New York’s program wasn’t extensively vetted among cleaning product manufacturers before its issuance. This, along with the lack of alignment between the New York and California programs, inspired two trade associations, the Household Cleaning Products Association (HCPA) and the American Cleaning Institute (ACI), to challenge judicially the NYDP. The suit alleges NYDEC violated important administrative procedures and that its refusal to work with industry has created an “unworkable” policy that should be retracted so a consistent national model for ingredient communication can be implemented instead. Some claim that NYDEC exceeded its regulatory power by issuing the program under the authority of the Environmental Conservation Law, a law enacted in the early 1970s.
While the litigation progresses through the New York courts, NYDEC recently announced it won’t enforce provisions of the program that become effective on July 1, 2019. NYDEC states:
[NYDEC] will not enforce the July 1, 2019 milestone requirement pursuant to ECL 35-0107 and 6 NYCRR 659.6, for a period running from July 1, 2019 to October 1, 2019. [NYDEC] will begin enforcing any violations of the above required disclosure as of October 2, 2019. Nothing set forth herein effect any other legally binding requirements for which manufacturers must comply; or [NYDEC’s] right to enforce any other legal requirements.
NYDEC’s decision to delay enforcement is a good development. To the extent the ongoing litigation may prompt greater alignment between the two divergent state programs, the enforcement stay may facilitate positive action in this regard. At the least, the delay allows impacted commercial entities and their suppliers additional time to comply with the law’s requirements.
LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at email@example.com
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.