California demands disclosure of chemicals in cleaning products

California Becomes First US State to Require Manufacturers of Designated Cleaning Products to Disclose Hazardous Chemicals on Labels and Online

On 15 October 2017, Governor Jerry Brown signed the Cleaning Product Right to Know Act of 2017 (SB-258 or Act). This Act makes California the first state to require manufacturers of designated cleaning products used by millions of consumers and workers to list known hazardous chemical ingredients both on labels and online. The Act prohibits the sale in California of a designated product that does not satisfy these requirements.

SB-258, the bill that became this law, was introduced by Senator Ricardo Lara, who states: “People around the country and especially Californians are demanding more disclosure about the chemicals in products we use…The science is clear, and we have seen the data about how cleaning product chemicals affect parents, children, people with pre-existing conditions, and workers who use these products on a daily basis. The Cleaning Product Right to Know Act is going to clear the air for shoppers and workers about products they use every day.”

Senator Lara was inspired to bring the legislation by stories from his mother, a former domestic worker.

The impact of the Act will be significant because there is no active federal rule requiring disclosure of hazardous substances in cleaning products. In addition, because California is such a large state marketplace, many companies may strengthen their disclosure standards nationally just so they can sell their products in California. (It is worth noting, that there are already similar federal requirements for retail cosmetics and packaged food, as two main examples.)

The Act will be introduced through a multi-year implementation period, which is intended to give manufacturers plenty of time to adjust their operations to comply with the new rule.

Which Products are Impacted?

Under the Act, a “designated product” is defined as a finished air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic, or institutional cleaning purposes. The term does not apply to:

• foods, drugs, and cosmetics, including personal care items such as toothpaste, shampoo, and hand soap;
• industrial products specifically manufactured for, and exclusively used in: oil and gas production, steel production, heavy industry manufacturing, industrial water treatment, industrial textile maintenance and processing other than industrial laundering, food and beverage processing and packaging, or other industrial manufacturing processes; or
• a trial sample of a designated product that is not packaged for individual sale, resale, or retail and includes a statement indicating that the product is not for sale or resale.
• The term “designated list” (of hazardous chemicals/substances requiring disclosure) is broad and divided into 22 subcategories, including but not limited to:
• chemicals known to the State of California to cause cancer or reproductive toxicity as listed under Proposition 65;
• chemicals classified by the European Union as carcinogens, mutagens, or reproductive toxicants pursuant to Category 1A or 1B in Annex VI to Regulation (EC) 1272/2008;
• chemicals for which a reference dose or reference concentration has been developed based on neurotoxicity in the U.S. Environmental Protection Agency’s (EPA’s) Integrated Risk Information System;
• chemicals identified as persistent, bioaccumulative, and inherently toxic to the environment by the Canadian Environmental Protection Act Environmental Registry Domestic Substances List;
• chemicals for which primary maximum contaminant levels (MCLs) have been established and adopted under Section 64431 or 64444 of Title 22 of the California Code of Regulations; and
• chemicals identified as toxic air contaminants under Section 93000 or 93001 of Title 17 of the California Code of Regulations (CCR).

Finally, “Nonfunctional constituent” means a substance listed under California Health & Safety Code, Div. 104, Pt. 3, Sec. 108952(m) 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. Examples include benzene, diisobutyl phthalate, formaldehyde, glyoxal, and N-Nitrosodimethylamine.

What Information Must be Disclosed on the Label?

Effective 1 January 2020, any manufacturer of a designated product sold in California must disclose the following information (among other related information detailed in the Act) on the product label:

• a list of each intentionally added ingredient contained in the product that is included on a “designated list”; or
• a list of all intentionally added ingredients contained in the designated product, unless it is confidential business information.

In addition, manufacturers must disclose the manufacturer’s toll-free telephone number and Internet Web site address on the designated product label and specific other information if the product label does not include a full list of intentionally added ingredients.

What Information Must be Disclosed Online?

Effective 1 January 2021, the manufacturer of a designated product sold in the state must post on its Internet Web site, in an electronically readable format, the following information related to the designated product:

• a list of each intentionally added ingredient contained in the product, with a few listed exceptions;
• a list of all nonfunctional constituents present in the designated product at a concentration at or above 0.01 percent (100 ppm);
• all information related to fragrance ingredients or allergens contained in the designated product;
• the Chemical Abstracts Service (CAS) number for any intentionally added ingredient or nonfunctional constituent (if a CAS number is not available or if the intentionally added ingredient is confidential business information, the phrase “not available” or “withheld,” respectively, must be used in place of the CAS number);
• the functional purpose served by each intentionally added ingredient;
• electronic links for designated lists that are grouped together in a single location for any intentionally added ingredient or nonfunctional constituent that is included on a designated list and any fragrance allergen included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labeled by the EU Detergents Regulation No. 648/2004, or subsequent updates to those regulations;
• a link to the hazard communication safety data sheet for the designated product; and
• if a product is required to include an Internet Web site address, then this information must be posted no more than five clicks from the Uniform Resource Locator (URL) printed on the designated product label and no more than four clicks from a product-specific Internet Web site (separate requirements apply if a URL is not required).

The Act also requires an employer that is required to make a safety data sheet readily accessible to an employee to make readily accessible in the same manner, for designated products in the workplace, certain information included in the online disclosures relating to chemicals contained in those products.

Exemption for Confidential Business Information

Hazardous ingredients must be disclosed to consumers and workers even if they are part of a recipe that is considered to be a trade secret.

However, the Act does not require manufacturers to disclose the weight or amount of ingredients protected as confidential business information (CBI).

Under the law, “Confidential business information” means any intentionally added ingredient or combination of ingredients for which a claim has been approved by the federal Environmental Protection Agency for inclusion on the Toxic Substances Control Act (TSCA) Confidential Inventory, or for which the manufacturer or its supplier claim protection under the Uniform Trade Secrets Act (Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code) as required by Section 108955. Confidential business information does not include any of the following:

• An intentionally added ingredient or combination of ingredients that is on a designated list, as defined
• A nonfunctional constituent, as defined
• A fragrance allergen included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labeled by the EU Detergents Regulation No. 648/2004, or subsequent updates to those regulations, when present in the product at a concentration at or above 0.01 percent (100 ppm)

Enforcement, Regulatory Spread and Federal Initiatives

Finally, while no provision in the Act requires enforcement by a state agency, the California Attorney General has the authority to enforce the law. According to Janet Nudelman, Director of Programs and Policy at Breast Cancer Prevention Partners, the public relations fallout for violating the law may also motivate manufacturers to comply.

On a similar note, will we see this regulation ‘spread’ to other States? In many ways, when it comes to environmental initiatives, California is a regulatory trendsetter, which means that other progressive states (and, depending on the current administration, the federal government) may choose to copy this program. However, the likelihood of this is hard to gauge, and will probably depend upon how the California program works in practice.

There are no federal initiatives (or current regulations) on this precise subject matter. Generally speaking, the federal government could pass a more stringent rule, but it could not force California to adopt a lower standard (unless courts found that federal law preempts state law in this area, which is unlikely). Of course, political realities make it very unlikely that the federal government would pass a more stringent rule anytime in the near future.

For more information, see the full text of the Cleaning Product Right to Know Act of 2017 online.