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New California Law Will Require Manufacturers to Disclose Ingredients in Cleaning Products, Air Fresheners, and Automotive Products

January 2, 2018

On October 15, 2017, California Governor Jerry Brown signed the Cleaning Product Right to Know Act into state law.[1] The Act requires manufacturers of general cleaning products, air care products, and certain automotive products[2] that are sold in California to disclose ingredients on product labels and online.[3] It also prohibits retailers from selling products in California that do not comply with the new disclosure requirements.[4] The online disclosure provisions will take effect in 2020, and the labeling requirements will take effect in 2021.[5]

Under the Act, the manufacturer of a covered product may choose one of two sets of information to disclose on the label. It may disclose (1) fragrance allergens that are present in the product at a concentration at or above 0.01 percent included in Annex III to the European Union’s (“EU”) Cosmetics Regulation No. 1223, and ingredients that are intentionally added to the product and appear on one of twenty-two regulatory lists identified in the Act,[6] or, (2) it may disclose all intentionally added ingredients in the product other than ingredients that qualify as confidential business information (“CBI”). The lists referenced in option 1 are each published by a state, federal, Canadian, or international agency, and name substances with the potential to cause harm to human health or the environment. For example, under option 1, the Act requires disclosure of chemicals that are designated on the Proposition 65 list, a list of carcinogens and reproductive toxins compiled by the California Office of Environmental Health Hazard Assessment pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986.

Under option 2, in which a manufacturer discloses all intentionally added ingredients in the product other than ingredients that qualify as CBI, the Act defines CBI narrowly, and excludes all intentionally added ingredients that appear on one of the twenty-two regulatory lists, all nonfunctional constituents, and all fragrance allergens included on Annex III of the EU Cosmetics Regulation No. 1223/2009, when present in the product at a concentration at or above 0.01 percent. However, the manufacturer is permitted to list fragrance ingredients and colorants generally as “fragrances” and “colorants” on the label, so long as the label also states that the product “[c]ontains fragrance allergen(s),” if it contains a fragrance allergen at a concentration at or above 0.01 percent that is included on Annex III of the EU Cosmetics Regulation No. 1223/2009.

In addition to the required disclosures on the product label, certain information must be disclosed on the manufacturer’s website. The manufacturer is required to list every intentionally added ingredient, except for CBI and fragrance ingredients, in descending order of predominance, as well as the nonfunctional constituents that are present in the product in concentrations at or above 0.01 percent. The website must also state the functional purpose of each intentionally added ingredient and provide links to the regulatory lists on which the chemical ingredients appear.

The Act does not impose penalties for violations, nor does it specify a mechanism for enforcement. In California, statutes with no express enforcement provision are commonly enforced by private litigants and district attorneys under the state’s Unfair Competition Law, California Business & Professions Code § 17200, which prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising,” and authorizes a private right of action.[7] Private plaintiffs frequently use § 17200 to redress alleged violations of federal and state laws by claiming that those violations constitute “unlawful … business act[s]” prohibited under § 17200. However, private plaintiffs may only seek injunctive relief in § 17200 suits.[8] By contrast, in suits brought by the California Attorney General, a district attorney, or certain county counsel and city attorneys, § 17200 authorizes recovery of civil penalties of up to two thousand five hundred dollars ($2,500) for each violation. Some district attorneys are particularly active in their enforcement of consumer protection laws in part because California Business & Professions Code § 17206(c) entitles their county to retain the entirety of the penalties recovered.

In passing the Cleaning Product Right to Know Act, California became the second state, after New York,[9] to require disclosure of information about ingredients contained in cleaning products. The California law was sponsored by State Senator Ricardo Lara (D - Bell Gardens) and backed by consumer and environmental groups seeking to increase transparency regarding the contents of consumer products. While several large manufacturers, including SC Johnson and Unilever, also supported the bill, trade groups representing manufacturers, retailers, and the chemical industry opposed the bill on the ground that adding lengthy ingredient lists to already-crowded labels will increase consumer confusion. Some companies also generally oppose regulations that incorporate chemical lists developed in foreign jurisdictions, which U.S. companies have no opportunity to shape.

The Act follows a general trend of increased regulation of the chemical composition of consumer products at the state level. Within the past ten years, several states have adopted initiatives for collecting information on chemicals and reducing the use of chemicals thought to be harmful to human health or the environment.[10] Other state laws require disclosure of chemical information to consumers, mandate that regulated entities report their use of certain chemicals, ban or significantly restrict the use of particular chemicals, or focus specifically on eliminating designated chemicals from use in children’s products.[11]

States are regulating in the chemicals sphere due in part to the absence of significant federal regulation. The Cleaning Product Right to Know Act is the latest example of this phenomenon, as the Act’s requirements go well beyond federal disclosure obligations. (Bills similar in principle to California’s law were proposed in the U.S. Congress during the past several legislative sessions, but none were voted out of committee.[12]) Federal law currently mandates that manufacturers of consumer cleaning products[13] and institutional cleaning products[14] provide warnings about the physical and health hazards, such as flammability and toxicity, associated with those products. But full ingredient disclosure is not required under either framework.

For more information, please contact Sarah E. Peterson, Laura M. Duncan, or any of the other attorneys in the Firm’s Product Compliance practice group.

[1] See Cal. Health & Saf. Code §§ 108950-60.

[2] The Act defines “general cleaning product” as “soap, detergent, or other chemically formulated consumer product labeled to indicate that the purpose of the product is to clean, disinfect, or otherwise care for fabric, dishes, or other wares; surfaces including, but not limited to, floors, furniture, countertops, showers, and baths; or other hard surfaces, such as stovetops, microwaves, and other appliances.” Id. § 108952(j). An “air care product” is “a chemically formulated consumer product labeled to indicate that the purpose of the product is to enhance or condition the indoor environment by eliminating unpleasant odors or freshening the air.” Id. § 108952(a). An “automotive product” is “a chemically formulated consumer product labeled to indicate that the purpose of the product is to maintain the appearance of a motor vehicle, as defined in Section 670 of the Vehicle Code, including products for washing, waxing, polishing, cleaning, or treating the exterior or interior surfaces of motor vehicles.” Id. § 108952(b).

[3] “Manufacturer” includes both the entity that manufactures the product and the entity for which the product is manufactured or by which the product is distributed. Id. § 108952(l). Paint-related automotive products and pesticides, as defined in Section 12753 of the California Food and Agricultural Code, are exempt from the Act’s requirements. Id. §§ 108952(b), 108954(c), 108954.5(d).

[4] See Cal. Health & Saf. Code § 108958.

[5] Chemical ingredients that appear on the California Proposition 65 list need not be disclosed online or on labels until January 1, 2023.

[6] See id. § 108952(g).

[7] See Cal. Bus. & Professions Code § 17204 (authorizing any “person who has suffered injury in fact and has lost money or property as a result of the unfair competition” to bring an action for injunctive relief).

[8] Id.; Zhang v. Superior Court, 304 P.3d 163, 167 (Cal. 2013).

[9] New York has adopted regulations requiring manufacturers of domestic and commercial cleaning products sold in the state to furnish information regarding such products. As to each cleaning product, the manufacturer must report:

the amount of elemental phosphorus by weight as measured to the nearest one-tenth of one percent; (2) a list naming each ingredient which equals or exceeds five percent of the contents of the product by weight and specifying the content by weight of each ingredient to the nearest percent; (3) a list naming each ingredient which does not equal or exceed five percent of the contents of the product by weight, provided that ingredients which are present in trace quantities need not be included on such list unless the commissioner specifically requests any such ingredient to be listed and provided further that the commissioner may require the listing of one or more of such ingredients by weight to the nearest percent; (4) 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 or such ingredients; and (5) a statement that the product does not contain nitrilotriacetic acid (NTA) in excess of a trace quantity.

N.Y. Comp. Codes R. & Regs. tit. 6, § 659.6. The state environmental agency recently issued and took comments on draft guidance, which would also require manufacturers to disclose chemicals of concern, as identified by various regulatory authorities, on their websites.

[10] See, e.g., Cal. Health & Saf. Code §§ 25251-57.2; Mich. Exec. Directive No. 2006-6; Or. Exec. Order No. 112-05.

[11] U.S. State Chemicals Policy Database, Interstate Chems. Clearinghouse (last visited Dec. 19, 2017), http://www.theic2.org/chemical-policy. See, e.g., D.C. Code § 8-107.02 (requiring cleaning agent labels to state the product’s phosphorous content); Mass. Gen. Laws ch. 21I, § 10 (requiring users of large quantities of hazardous chemicals to submit an annual report); 410 ILCS 46 (prohibiting the sale of certain products if they contain mercury); Wash. Rev. Code Ann. §§ 70.240.010-.060 (implementing restrictions and requirements with respect to chemicals in children’s products); Cal. Health & Saf. Code §§ 25214.1-25214.4.2 (regulating chemicals in children’s jewelry).

[12] H.R. 2728, 115th Cong. (2016-17); H.R. 5205, 114th Cong. (2015-16); H.R. 4476, 113th Cong. (2014-15).

[13] See 15 U.S.C. §§ 1261-78 (Federal Hazardous Substances Act).

[14] See 29 C.F.R. § 1910.1200 (OSHA Hazard Communication Standard).

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