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California Bill Would Require Disclosure of Cleaning Product Ingredients

On September 13, 2017, the California Senate passed the final version of the Cleaning Product Right to Know Act of 2017 (S.B. 258), which would require manufacturers of cleaning products to disclose certain chemical ingredients on the product label and on the manufacturer’s website. The Senate passed the bill by a vote of 27 to 13. The California Assembly passed the bill by a vote of 55 to 15, with nine votes not recorded, on September 12, 2017. Governor Jerry Brown (D) has until October 15, 2017, to sign the bill. He has not taken a public position on it.

Senator Ricardo Lara (D), who authored the bill, issued a September 12, 2017, press release after the California Assembly passed the bill. The press release states that “[c]hemicals in cleaning products have been shown to cause cancer, birth defects, asthma and other serious health effects, and ingredient labeling responds to consumers’ demand for transparency.” According to the press release, a poll commissioned by bill sponsors showed 78 percent of California voters support requiring ingredient disclosure. The press release notes that the bill is co-sponsored by non-governmental organizations Breast Cancer Prevention Partners, Environmental Working Group, Natural Resources Defense Council, and Women’s Voices for the Earth, as well as manufacturers of cleaning products, including Honest Company, Seventh Generation, Procter & Gamble, SC Johnson, RB - Reckitt Benckiser, Unilever, Eco Lab WD-40, fragrance maker Givaudan, and the Consumer Specialty Products Association.

According to the September 13, 2017, Senate floor analyses, consumer advocates and industry representatives worked for more than six months to reach a compromise that would provide ingredient information to consumers and workers about known chemicals of concern while ensuring that businesses are able to protect valid proprietary information for other chemicals. The bill was amended to clarify the disclosure obligation pursuant to the Act, including, but not limited to: (1) authorizing a manufacturer to protect as confidential business information (CBI) any intentionally added ingredient or combination of intentionally added ingredients that meet the definition of CBI; (2) specifying that a manufacturer of a designated product sold in California is required to disclose on the product label specified information, including a list of intentionally added ingredients that are on a designated list; and (3) providing for specifications on the disclosure requirements. The Senate analysis lists the following associations as “opposition,” as of September 7, 2017: American Chemistry Council; Auto Alliance; California Manufacturers & Technology Association; CropLife America; Grocers and Manufacturers Association; National Federation of Independent Business (NFIB) -- The Voice of Small Business; Pacific Association of Building Service Contractors; and Western Plant Health Association.

Under the bill as amended, a designated product is “a finished product that is an air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic, or institutional cleaning purposes.” Excluded products include personal care products such as toothpaste, shampoo, and hand soap; trial samples of designated products that are not packaged for individual sale, resale, or retail; and 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; and other industrial manufacturing processes.

An intentionally added ingredient is “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.” A nonfunctional constituent is defined as one of the following substances 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:

  1. 1,4 dioxane;

  2. 1,1 dichloroethane;

  3. Acrylic acid;

  4. Benzene;

  5. Benzidine;

  6. 1,3 butadiene;

  7. Carbon tetrachloride;

  8. Chloroform;

  9. Ethylene oxide;

  10. Nitilotriacetic acid;

  11. Butyl benzyl phthalate;

  12. Butyl decyl phthalate;

  13. Di(2-ethylhexyl) phthalate;

  14. Diethyl phthalate;

  15. Diisobutyl phthalate;

  16. Di(n-octyl) phthalate;

  17. Diisononyl phthalate;

  18. Dioctyl phthalate;

  19. Butylparaben;

  20. Ethylparaben;

  21. Isobutylparaben;

  22. Methylparaben;

  23. Propylparaben;

  24. Formaldehyde;

  25. 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride;

  26. DMDM hydantoin;

  27. Diazolidinyl urea;

  28. Glyoxal;

  29. Imidazolidinyl urea;

  30. Polyoxymethylene urea;

  31. Sodium hydroxymethylglycinate;

  32. 2-Bromo-2-nitropropane-1,3-diol;

  33. N-Nitrosodimethylamine; and

  34. N-Nitosodiethylamine.

CBI means any intentionally added ingredient or combination of ingredients for which a claim has been approved by the U.S. Environmental Protection Agency (EPA) 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. CBI shall not include an intentionally added ingredient or combination of ingredients that is on a designated list; a nonfunctional constituent; or a fragrance allergen included on Annex III of the European Union (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 parts per million).

A designated list is any of the more than 20 authoritative lists identified 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 include the following state, federal, and international lists:

  • Proposition 65;

  • Chemicals classified by the EU as carcinogens, mutagens, or reproductive toxicants;

  • Chemicals included in the EU Candidate List of Substances of Very High Concern (SVHC) for endocrine disrupting properties, persistent, bioaccumulative, and toxic (PBT) properties, or very persistent and very bioaccumulative (vPvB) properties;

  • Chemicals for which the EPA Integrated Risk Information System (IRIS) has developed a reference dose or reference concentration based on neurotoxicity, or identified as carcinogenic to humans, likely to be carcinogenic to humans, or as Group A, B1, or B2 carcinogens;

  • Chemicals identified as persistent, bioaccumulative, and inherently toxic to the environment by the Canadian Environmental Protection Act (CEPA) Environmental Registry Domestic Substances List;

  • Group 1, 2A, or 2B carcinogens identified by the International Agency for Research on Cancer (IARC);

  • Neurotoxicants that are identified in the federal Agency for Toxic Substances and Disease Registry’s (ATSDR) Toxic Substances Portal, Health Effects of Toxic Substances and Carcinogens, Nervous System;

  • Reproductive or developmental toxicants identified in Monographs on the Potential Human Reproductive and Developmental Effects published by the National Toxicology Program (NTP) Office of Health Assessment and Translation;

  • Chemicals identified by EPA’s Toxics Release Inventory (TRI) as PBT chemicals that are subject to reporting under Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA);

  • The Washington Department of Ecology’s PBT chemicals identified in Chapter 173-333 of Title 173 of the Washington Administrative Code;

  • Chemicals that are identified as known to be, or reasonably anticipated to be, human carcinogens by the 13th Report on Carcinogens prepared by NTP. Subsequent revisions to this list shall not be incorporated;

  • Chemicals for which primary maximum contaminant levels have been established and adopted;

  • Chemicals that are identified as priority pollutants in the California water quality control plans, or identified as pollutants by the state or EPA for one or more water bodies in California;

  • Chemicals that are identified with noncancer endpoints and listed with an inhalation or oral reference exposure level by the Office of Environmental Health Hazard Assessment (OEHHA); and

  • Chemicals identified as priority chemicals by the California Environmental Contaminant Biomonitoring Program.

The online disclosure requirements would apply to a designated product sold in California on or after January 1, 2020. The product label disclosure requirements would apply to a designated product sold in California on or after January 1, 2021.

Commentary

Whether Governor Brown will sign the bill is unclear. This is not the first time this type of measure has been before the California legislature, and if it fails, it will not be the last. New York’s new initiative, the Household Cleaning Product Information Disclosure Program, requires similar disclosures, and advocates have been relentless in California in securing a similar law in that state. This go around reflects both some industry support, and strong industry push back. We will know soon as the October 15 deadline is fast approaching.

©2017 Bergeson & Campbell, P.C.

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