Introduction to SB 258
Senate Bill 258 is entitled the “Cleaning Product Right to Know Act of 2017.” California senator Ricardo Lara introduced this bill on February 8, 2017. The bill was considered by and passed through several Senate Committees and has now moved over to the State Assembly. This is California’s third attempt in the last seven years to pass a “right-to-know” bill like this and follows a multi-state trend of full ingredient disclosures for consumer products.
What SB 258 Regulates
- Who is regulated? SB 258 regulates “manufacturers.” However, the term is broadly defined to include not only a traditional manufacturer of a cleaning product that is sold in California, but any entities that assemble, package, repackage or relabel a cleaning product. That arguably includes California employers who transfer cleaning products into containers in the workplace.
- What is regulated? The bill regulates “cleaning products,” meaning “any product used primarily for commercial, domestic, or institutional cleaning purposes.” This specifically includes air care, automotive, general cleaning and polish or floor maintenance products.
- What must the manufacturer do? The bill requires the manufacturer disclose on the cleaning product label the four following items:
1. All ingredients and ‘contaminants of concern’: the manufacturer must disclose “a list of each ingredient and ‘contaminant of concern’ contained in the product (in descending order of predominance).” A ‘contaminant of concern’ includes, but may not be limited to:
a. Any of the more than 800 chemicals regulated as carcinogens or reproductive toxicants under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65” – the full list being found at: oehha.ca.gov; and
b. Any of the allergenic fragrances that are regulated in Annex III of the European Union’s Cosmetics Regulation 1223/2009 (ec.europa.eu)
All contaminants of concern must be listed, although relatively de minimis chemicals below 1% concentrations do not have to be listed in descending order.
2. A pictogram communicating potential health impacts for certain ingredients of concern. The California Environmental Protection Agency will develop a model pictogram to be used by manufacturers as a warning to consumers. It is unclear what will ultimately be chosen. However, last year, the State’s Department of Toxic Substances Control (“DTSC”) promulgated new Proposition 65 product content warning regulations that require, among other things, a pictogram warning consisting of a yellow triangle with a black exclamation point inside it: 
. It is likely but not guaranteed that this law would utilize a similar warning, since many of the regulated chemicals overlap.
3. A statement directing consumers to the manufacturer’s website for more information on ingredients and potentially harmful contaminants of concern that are contained in the product. The website, in addition to listing all regulated ingredients in descending order, including the ingredient’s name, Chemical Abstract Service (“CAS”) number and functional purpose of each ingredient, shall provide links to the lists where the ingredients and potentially harmful contaminants appear. This again is very similar to the new DTSC Proposition 65 warning regulations, which directs readers to the following website: p65warnings.ca.gov.
4. A “Quick Response” (“QR”) barcode that consumers can scan with their smartphones if the product contains ingredients of concern. For example:
By scanning the QR code, the person exposed to the cleaning product would receive an additional warning of the regulated chemicals of concern at issue.
SB 258 Support and Opposition
Those in favor of the bill point to safety concerns associated with chemicals used in cleaning products – some of which are considered to be carcinogens or reproductive toxicants at significant exposure levels, and lack of consumer knowledge of those dangerous chemicals. This follows a general “consumer-right-to-know” trend of laws that have developed most prominently in the European Union and the U.S., but also are on the rise in other countries as well.
Opposition to the bill has come from not only manufacturers of cleaning products, but also through many Chambers of Commerce representing non-manufacturing employers in California.
The main concerns of those opposed to the bill fall into five categories:
- Confidential Business Information (“CBI”): requiring disclosure of every ingredient and contaminant of concern (without placing the risk of exposure into context) stifles any incentive to invest in costly research and development initiatives which would create new and improved (less harmful) products.
- False presumption that exposure translates to harm: As written, SB 258 requires disclosure that a chemical ‘exists’ in a product but risks confusing a user insofar as there is no explanation how the intended or worst case exposure scenario (measured by magnitude, duration or frequency of exposure to the chemical) impacts risk or actual harm to the user.
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Commercially impracticable in terms of sustained implementation: The Proposition 65 list is updated several times a year. The European Annex III is periodically amended as well. The bill as written creates a significant burden on all employees, but especially small and medium sized businesses, staying current with the evolving lists of chemicals, and (probably incorrectly) assumes that the State will be able to stay current with additional regulatory review, oversight and enforcement obligations. Also, it will be impracticable for the law as written to regulate sales of product that reach California via an indirect distribution chain, including internet sales – where the manufacturer may not have originally intended sales into California.
- Ambiguity in re-packaged materials: Opponents to SB 258 believe the current bill is unclear as to how an employer using a regulated cleaning product can practically comply with the bill. As written, the bill could require an employer who pours a cleaning product into a bucket for use in a California facility to now label the bucket in the same way as the original container. This also creates many new requirements for employee training as well as employer liability for employees who do not use products as intended, mislabel or mix products or use more than one cleaning product in a container – and what impacts that may have relative to the Occupational Safety and Health Act’s “general duty” requirement of “providing a ‘safe and healthful’ work environment.”
- The unintended risk of “overwarning”: Opponents argue that existing law and fear of product liability claims already causes manufacturers and employers to provide a certain level of product warning / labelling and employee training for safe use. They believe the increased warnings in SB 258 collectively create information overload to the point that the hypothetical additional benefits of the information will be outweighed by the confusion over the additional facts conveyed in a way that does not place the ultimate risk in context. Users will be “numbed” by the data overload and the right-to-know goal of the bill will not be achieved.
Status
As of the date of this writing, SB 258 has been approved by the Senate and is now being considered in the California Assembly where it has been referred to the committees on Environmental Safety & Toxic Materials and Labor and Employment. While the bill passed through the Senate, that body is considered slightly more liberal as a whole than some members in the Assembly. Even though certain Assembly members may represent geographic areas with large worker populations who could be protected by this bill, they are also sensitive to business concerns that the bill might pose unnecessary hardships in costs and regulations on both manufacturers and employers. Consequently, there may be some chance the bill will be amended or clarified over the summer before September 15, the last day that any bill can be passed this year.
Staying Informed
This is California’s third attempt in the last seven years to enact a bill aimed at full ingredient disclosure. Though past attempts failed to pass into law, with SB 258, California follows a recent nationwide legislative trend of introducing consumer or employee “right-to-know” bills at the state level. Nine states introduced similar measures in the first six weeks of 2017 alone. Additionally, with mandatory ingredient labels for food, retail cosmetics, and drugs, legislators have shown a willingness to pass broad-based disclosure requirement bills into law.
Manufacturers of cleaning supplies in particular, but employers in general, should follow SB 258 for two reasons: a) if passed (in this first year of a two year legislative session), the law would go into effect on January 1, 2018 – so that internal compliance training would need to begin even sooner; and b) if this type of disclosure law passes relative to cleaning products, it opens the door for similar laws covering a much broader range of consumer products in the future.
Client Alert 17-142
