Prior Legislative Analysis
Reed Smith first analyzed an earlier version of SB 258 last June. A link to our original review can be found here. The original bill triggered significant concerns from both industry and Assembly members in areas with significant labor forces and employer interests. The California Assembly likely amended the bill in light of: 1) opponents’ voiced concerns of the over-abundance of facts on product labels that would lead to consumer confusion; 2) Confidential Business Information placed at risk; and 3) the costs and practical hurdles in implementing the disclosure requirements. This update focuses on a few of the key provisions, and the subsequent amendments to the bill that enabled it to pass.
What SB 258 Regulates Under the Amended Language
What must be disclosed?
A cleaning product manufacturer must disclose on the label of products sold in the state on or after January 1, 2021, unless the product is a pesticide under California Food and Agricultural Code § 12753, either of the following:
- A list of each intentionally added ingredient contained in the product that is included on a designated list, and each fragrance included on a designated list; a list of each fragrance allergen that is included on Annex III of the EU cosmetics regulation 1223/2009 and that is present at a concentration of .01% (100 ppm) or higher in the product. The designated list is a list of 22 groups of chemicals recorded in section 108952(g) that have been identified as harmful or toxic by groups like regulatory agencies, research institutions or prior legislation. Notwithstanding the above information, the manufacturer is not required to disclose on the product label any intentionally added ingredients included on a designated list pursuant to the California Safe Drinking Water and Toxic Enforcement Act (aka "Proposition 65") until January 1, 2023; or
- A list of each intentionally added ingredient contained in the product, unless it is confidential business information. Manufacturers shall include the phrase “Contains fragrance allergen(s)” on the product label when a fragrance allergen noted on Annex III of the EU Cosmetics Regulation 1223/2009 is present in the product at a concentration of 0.01% (100 ppm) or higher. Fragrance ingredients or colorants that do not appear on a designated list may be listed on the product label as “fragrances” or “colorants,” respectively. Notwithstanding the above information, manufacturers are not required to disclose intentionally added ingredients on a designated list pursuant to Proposition 65 until January 1, 2023.
Priorities for Listing (Tiered Nomenclature Systems)
Intentionally added ingredients, fragrance ingredients, or nonfunctional constituents must be listed pursuant to the following nomenclature systems, in the order listed:
- Consumer Specialty Products Association Consumer Product Ingredients Dictionary (CSPA Dictionary) or International Nomenclature of Cosmetic Ingredients (NCI)
- International Union of Pure and Applied Chemistry nomenclature (IUPAC)
- Chemical Abstracts Index name
- Common Chemical Name
Additionally Required Information
In addition to the above product label disclosure option, the following are required of a cleaning product manufacturer for non-pesticides:
- The product label must disclose the manufacturer’s toll-free number and website
- If a product label does not include a full list of intentionally added ingredients, it must include:
a. A statement that reads: “For more ingredient information, visit . . . ”
b. An address for a website that provides all of the information listed below in “Special Website Disclosures”
c. A toll-free phone number
Special Website Disclosures
The following information must be included on the manufacturer’s website for products sold in the state on or after January 1, 2020, “no more than five clicks” from the URL printed on the product label and “no more than four clicks” from a product-specific website:
- Each intentionally added ingredient in descending order by weight in the product, except intentionally added ingredients that are confidential business information
- Ingredients subject to Proposition 65 need not be listed until January 1, 2023
- A list of all nonfunctional constituents present in the designated product at a concentration at or above .01% (100 ppm), and a list of each nonfunctional constituent that is subject to Proposition 65 that triggers a product warning pursuant to Proposition 65
- 1,4 dioxane must be listed if present in the product at or above .001% (10 ppm)
- The Chemical Abstracts Service (CAS) number for any intentionally added ingredient or nonfunctional constituent, as well as its functional purpose (“fragrance ingredient” or “colorant”). If the CAS number is unavailable or if the ingredient is confidential business information, the phrase “not available” or “withheld,” respectively, shall be used in its place.
- A list in a single location of electronic links to the relevant designated list for any intentionally added ingredient or nonfunctional constituent included on a designated list
- A link to the hazard communication safety data sheet for the product
Fragrance and Allergen Website Disclosures
Cleaning product manufacturers must also post the following information on their website related to fragrance ingredients or allergens in the product:
- A list of all fragrance ingredients included on a designated list
- A list of all fragrance allergens included on Annex III of the European Cosmetics Regulation 1223/2009 that are required to be labeled when present in the product at or above .01% (100 ppm). The list must include all intentionally added fragrance ingredients at a concentration at or above .01% in the finished product.
- All fragrance ingredients pursuant to Proposition 65 need not be listed until January 1, 2023
- A list of all fragrance ingredients not listed in (a)-(c) that are present in the product at or above .01% (100 ppm), unless it is confidential business information.
Confidential Business Information
The Act provides limited protections for confidential business information (“CBI”) , which is defined as: “any intentionally added ingredient or combination of ingredients for which a claim has been approved by the United States Environmental Protection Agency for inclusion on the Toxic Substances Control Act Confidential Inventory, or for which the manufacturer or its suppliers claim protection under the Uniform Trade Secrets Act."
Even if a chemical is on one of the above lists, cleaning product manufacturers must maintain justification for protecting CBI, and provide that justification on request by the attorney general. If listed on the federal Toxic Substances Control Act (“TSCA”) and protecting an ingredient, the manufacturer may use the ingredient’s generic name, as provided in the federal TSCA Confidential Inventory. If not included in the TSCA Confidential Inventory, but the manufacturer claims protection for the ingredients under the Uniform Trade Secrets Act (Title 5 (commencing with section 3426) of Part 1 of Division 4 of the Civil Code), the manufacturer must use a name that is only as generic as necessary to protect the confidential identity of the intentionally added ingredient or combination of ingredients using the generic name framework provided by the Environmental Protection Agency guidance for the TSCA Confidential Inventory.
National Trend?: New York Household Cleansing Product Information Disclosure Program
California is not the only state interested in expanding disclosure obligations on cleaning products. New York is soon expected to formally release its Household Cleansing Product Information Disclosure Program, which may require the disclosure of substantially more chemicals than California’s SB 258. While California’s program requires disclosure of up to 34 chemicals present at 100 parts per million (ppm) or higher, a draft of the New York program would require disclosure of about 3,700 chemicals when present in a product at a minimum of 50 parts per billion (ppb). Manufacturers selling products in New York would have to post ingredient information online starting January 1, 2019, whereas California requires online ingredient disclosure by January 1, 2020.
Closing Observation
The Cleaning Product Right to Know Act of 2017 is a good example of the need for and difficulty in balancing:
a. The important public policy goal of disclosing material health information to consumers and professional cleaning staff
b. The practical necessity of providing information to the public in a context that the reader can understand the likely risks (or lack thereof) associated with the “exposure” from one or more chemicals
c. Business concerns for protecting confidential business information – which provides an incentive for manufacturers to invest in costly research to develop
Client Alert 2017-250
