Wait a New York Minute – Is California’s Prop 65 Chemical Warning Statute Making its Way out East?
Earlier this year, New York Governor Andrew Cuomo announced a proposal to add stringent labeling requirements for certain products sold in New York through the “Consumer Right to Know Act” (the “Proposed Act”). While the Governor’s Office has not yet released any formal guidance on the Proposed Act, the Office’s website states that agencies will be directed to “assess the feasibility of on-package labeling,” “establish labeling requirements for designated products,” and “develop a list of more than 1,000 carcinogens and other chemicals that will trigger labeling” requirements.
The Proposed Act would also extend to the New York Department of Environmental Conservation’s (“NYDEC”) disclosure regulations regarding household cleaning products (see 6 N.Y.C.R.R. Part 659) to all cleaning products sold in the state and give the New York Department of Health similar regulating authority over personal care products. Broadly speaking, these regulations require manufacturers to make certain product ingredient information available on their websites and on a publicly accessible database.
Given the lack of detail currently available, it is difficult to assess exactly how much the Proposed Act will borrow from or mirror California’s Proposition 65 ("Prop 65”), which is currently the most onerous state-level chemical exposure labeling statutory scheme. Certainly, Governor Cuomo’s reference to “a list of 1,000 carcinogens” seems referential to California’s list of “Chemicals Known to the State to Cause Cancer and Reproductive Toxicity”, which currently includes over 950 chemicals. Governor Cuomo has not yet stated what criteria might be used in deciding which chemicals will make the New York list labeling (whether it be substances that cause cancer, reproductive toxicity, or something else) and, subsequently, what factors in determining the requirements for any corresponding labeling will require (i.e. exposure level exceedance, etc..), but we presume the framework will resemble the statutory requirements and/or regulatory guidance provided under California’s Prop 65.
Under California’s Prop 65, anyone can pursue a company for a chemical warning violation under the state’s civil enforcer statute. Governor Cuomo has not yet indicated whether the prospective NY law will include the same, or similar, enforcement mechanism. At this time, the proposal appears to limit enforcement to the state agency or agencies tasked with developing the Proposed Act’s framework. This may give some companies conducting business in New York cause for relief, at least in terms of knowing where the enforcement actions may come from. California’s private cause of action has been the subject of much scrutiny, as it has created a system by which businesses must defend against multiple citizen suits rather than work out potential violations with a singular state enforcement body. Foregoing a private enforcement action may be an important concession to the business community as Governor Cuomo rallies support for the Proposed Act.
The Governor’s proposal also does not indicate how the State will handle situations where a listed chemical is not considered to be harmful by a federal regulatory body (i.e. the USFDA in relation to food product warnings). Under California’s Prop 65, companies selling coffee products in CA faced a civil enforcement action with respect to every cup of coffee and coffee product sold without a warning that would notify the consumer of acrylamide in the coffee product. The lawsuit (known as CERT v. Starbucks et al.) is still pending after 10 years despite FDA’s findings that the Prop 65-listed chemical, acrylamide, in coffee poses no significant risk of cancer1. It remains to be seen how New York might adopt and incorporate federal findings regarding chemical exposures, risks and warnings into its state-wide regulatory scheme. As states continue to move in the direction of increased product labeling regulation, it would certainly be beneficial to harmonize their regulations with those of other states or emerging federal labeling guidance.
In the coming months, we will learn more about what may be in store for New Yorkers under the Proposed Act but one thing remains certain --- businesses can benefit from preemptive risk management as they ready themselves for new consumer product chemical labeling laws in the nation’s third largest state economy.
1California has sought to reduce the level of dissonance between it and the FDA on this point by creating an exemption for coffee sellers, however this exemption has not been applied to other foods containing acrylamide. See Statement from FDA Commissioner Scott Gottlieb, M.D., on FDA’s support for exempting coffee from California’s cancer warning law, August 29, 2018 https://www.fda.gov/news-events/press-announcements/statement-fda-commissioner-scott-gottlieb-md-fdas-support-exempting-coffee-californias-cancer.