On October 15, 2017, California governor Jerry Brown (D) signed the Cleaning Product Right to Know Act of 2017. The law requires manufacturers of cleaning products to disclose certain chemical ingredients on the product label and on the manufacturer’s website. The online disclosure requirements apply to a designated product sold in California on or after January 1, 2020, while the product label disclosure requirements cover products sold in California on or after January 1, 2021.
On April 25, 2017, New York governor Andrew Cuomo (D) announced an initiative to require manufacturers of household cleaning products sold in New York to disclose the chemical ingredients on their websites. The New York State Department of Environmental Conservation is expected to release final guidance shortly.
The New Law’s Requirements
Section 108954(a) of the new California law requires a manufacturer of a designated product sold in California to disclose the following information:
1a) A list of each intentionally added ingredient contained in the product that appears on a designated list;
1b) A list of each fragrance allergen included on Annex III of the European Union’s (EU) Cosmetics Regulation No. 1223/2009 as required to be labeled by the EU Detergents Regulation No. 648/2004 on January 1, 2018, when present in the product at a concentration at or above 0.01% (100 ppm). The manufacturer shall determine the total concentration of each fragrance allergen by adding contributions from all fragrance ingredients and other ingredients in the designated product, including its presence in essential oils; and
1c) Notwithstanding subparagraph (A), an intentionally added ingredient that’s known to California to cause cancer or reproductive toxicity, and appears on a designated list pursuant to Proposition 65 (Prop 65) shall not be required to be listed on the designated product label until January 1, 2023; or
2a) A list of all intentionally added ingredients contained in the designated product, unless it is confidential business information (CBI);
2b) A statement that reads “Contains fragrance allergen(s)” shall be included on the product label when a fragrance allergen included on Annex III of the EU Cosmetics Regulation No. 1223/2009, or subsequent updates to those regulations, is present in the product at a concentration at or above 0.01% (100 ppm). The manufacturer shall determine the total concentration of each fragrance allergen by adding contributions from all fragrance ingredients and other ingredients in the designated product, including its presence in essential oils;
c) Notwithstanding subparagraph (A), fragrance ingredients or colorants may be listed on the product label as “fragrances” or “colorants,” respectively; and
d) Notwithstanding subparagraph (A), an intentionally added ingredient that is known to the state of California to cause cancer or reproductive toxicity and is included on Prop 65 shall not be required to be listed on the designated product label until January 1, 2023.
An intentionally added ingredient is a chemical intentionally put into a designated product that has a functional or technical effect in the product, including 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. A nonfunctional constituent is one that is an incidental component of an intentionally added ingredient, a breakdown product of an intentionally added ingredient, or a byproduct of the manufacturing process that has no functional or technical effect on the designated product.
A designated list is any of the more than 20 authoritative lists mentioned in the Act that “identify chemicals as causing cancer or other human health or environmental harm, including any subsequent revisions to those lists when adopted by the authoritative body.” These lists comprise the usual suspects, including: Prop 65; EU classified carcinogens, mutagens, or reproductive toxicants; chemicals included in the EU Candidate List of Substances of Very High Concern for endocrine disrupting properties, persistent, bioaccumulative, and toxic properties, or very persistent and very bioaccumulative properties, among others.
An Emerging Trend
To many, the new law is a welcome step toward enhanced product ingredient disclosure and likely will generate greater consumer confidence in cleaning products. It will almost certainly be replicated in other states as “right to know” continues to be a critically important issue. While there are significant differences New York’s and California’s regulations, the message is the same — the demand for ingredient disclosure is not going away.
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.