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New York Household Cleansing Product Disclosure Program Will Require Disclosure of Nano Ingredients

As reported in our June 7, 2018, memorandum, the New York State Department of Environmental Conservation (NYSDEC) on June 6, 2018, released its final policy and form for manufacturer disclosures under the Household Cleansing Product Information Disclosure Program.  The Household Cleansing Product Information Disclosure Program requires manufacturers of cleaning products sold in New York to disclose chemical ingredients and identify any ingredients that appear on authoritative lists of chemicals of concern on their websites.  According to the Household Cleansing Product Information Disclosure Program Certification Form and Program Policy, for each ingredient that is a nanoscale material, a term describing the nanoscale material should be disclosed.  For example, if the nanoscale material is carbon, the disclosure should use the term “nanoscale” carbon.  NYSDEC’s Program Policy states that a nanoscale material “is a chemical substance that meets the [Toxic Substances Control Act (TSCA)] definition of a reportable chemical substance manufactured or processed at the nanoscale.  That definition provides, in part, that a ‘reportable chemical substance is a chemical substance as defined in Section 3 of TSCA that is solid at 25° C and standard atmospheric pressure, that is manufactured or processed in a form where any particles, including aggregates and agglomerates, are in the size range of 1-100 nanometers in at least one dimension, and that is manufactured or processed to exhibit unique and novel properties because of its size.  A reportable chemical substance does not include a chemical substance that is manufactured or processed in a form where less than 1% of any particles, including aggregates, and agglomerates, measured by weight are in the size range of 1-100 nanometers.’”

According to the response to comments, a commenter suggested that NYSDEC delete the definition of nanomaterial, as “no unified determination of the definition of nanomaterial exists.”  NYSDEC responded that the U.S. Environmental Protection Agency (EPA) “requires disclosure of nanoscale materials under TSCA.  In doing so, they have created a definition for what is considered a nanoscale material.”  NYSDEC updated the Program Policy “to harmonize with this EPA definition.”  Another commenter stated that the requirement to disclose nanomaterials should be removed, and that NYSDEC should rely on TSCA/the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  NYSDEC responded that “[t]he requirement to disclose nanoscale materials is important as the potential human health and environmental effects of such substances are not yet fully understood.  However, the disclosure of this information is subject to [confidential business information (CBI)] claims.”

NYSDEC has mischaracterized EPA’s one-time reporting rule as a disclosure program, and suggested that the definition used by EPA for the purposes of this one-time reporting rule applies to other TSCA regulations.  As noted in our memorandum, the scope of the New York Cleansing Products Disclosure Program may be just the beginning of many more product lines to be subject to disclosure.  That these “ingredient disclosure” programs are beginning to populate the commercial landscape is likely to be cause for concern by product manufacturers.  New York may simply be the first state to use the TSCA Section 8(a) reporting rule’s definition of a reportable chemical substance for its own purposes.

©2019 Bergeson & Campbell, P.C.

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About this Author

Lynn Bergeson, Campbell PC, Toxic Substances Control Act Attorney, federal insecticide lawyer, industrial biotechnology legal counsel, Food Drug Administration law
Managing Partner

Owner of Bergeson & Campbell, P.C. (B&C®), Lynn L. Bergeson has earned an international reputation for her deep and expansive understanding of the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), European Union Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), and especially how these regulatory programs pertain to nanotechnology, industrial biotechnology, synthetic biology, and other emerging transformative technologies. Her knowledge of and involvement in the policy...

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Carla Hutton, Bergeson Campbell PC, global regulatory attorney, public health activists lawyer, metals industry legal counsel, Toxic Substances Control Act law
Regulatory Analyst

Since 1996, Carla Hutton has monitored, researched, and written about regulatory and legislative issues that may potentially affect Bergeson & Campbell, P.C. (B&C®) clients. She is responsible for creating a number of monthly and quarterly regulatory updates for B&C's clients, as well as other documents, such as chemical-specific global assessments of regulatory developments and trends. She authors memoranda for B&C clients on regulatory and legislative developments, providing information that is focused, timely and applicable to client initiatives. These tasks have proven invaluable to many clients, keeping them aware and abreast of developing issues so that they can respond in kind and prepare for the future of their business.

Ms. Hutton brings a wealth of experience and judgment to her work in federal, state, and international chemical regulatory and legislative issues, including green chemistry, nanotechnology, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the Toxic Substances Control Act (TSCA), Proposition 65, and the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) program.

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