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February 25, 2020

Cleaning Product Disclosures From Coast to Coast: California Law Goes Into Effect, Is New York Next?


Less than two months after the online disclosure requirements of California's Cleaning Product Right to Know Act (the Act) went into effect, the New York Department of Environmental Conservation (NYDEC) has resumed efforts at enacting its own ingredient disclosure program for the Empire State. Although these state disclosure programs only apply to products sold in their respective states, their impacts will be felt nationwide, as few manufacturers are believed to have the ability to segregate their distribution of products between California and New York and the rest of the country.

NYDEC held a public meeting yesterday, February 24, 2020, "to discuss amendments to the household cleansing product rules that are being considered for adoption." NYDEC held this meeting after a trial court invalidated the Department's Household Cleansing Product Information Disclosure Program (the Program) in August 2019, on the ground that NYDEC failed to comply with the State Administrative Procedure Act's requirement for enacting a "rule." NYDEC is thus undertaking a formal rulemaking process to implement a version of the Program and states on its website that it is "looking for input on disclosure of nonfunctional ingredients, issues around confidential information, how to disclose when a product's formulation temporarily changes, and any other regulatory concerns."

NYDEC's efforts come shortly after the online disclosure requirements of the California Cleaning Product Right to Know Act went into effect. Under the Act, manufacturers are required to provide California consumers with a variety of information for designated cleaning products, including among other information, a list of all "intentionally added ingredients," a list of all "nonfunctional ingredients" present above 0.01 percent, and hyperlinks to government information websites for chemicals on an array of designated lists. The Act requires both online and on-label ingredient disclosures. Although manufacturers have until January 1, 2021 to comply with the on-label disclosure requirements, manufacturers were required to update their websites to comply with the Act's online disclosure requirements by January 1, 2020. Violations of the Act can be prosecuted by the California Attorney General, district attorneys, city attorneys or prosecutors, or private enforcers as violations of California's Unfair Competition Law.

Arnold & Porter has monitored both ingredient disclosure programs since they were introduced, lobbied on the California Cleaning Product Right to Know Act, and has advised numerous clients regarding both ingredient disclosure programs. If you have any questions about either of these ingredient disclosure programs, we would be delighted to help.;

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.