Client Alert

Full Disclosure: New Labeling for Cleaning Products

01 Nov 2017

On October 15, 2017, California Governor Jerry Brown signed into law Senate Bill 258, known as the Cleaning Product Right to Know Act of 2017 (the “Act”). The Act requires manufacturers of most cleaning products sold in California to disclose detailed information regarding their chemical content on the product label and on the manufacturers’ websites. While several California laws—such as Proposition 65 and the Green Chemistry Initiative—require some degree of product ingredient transparency, no prior California law has gone this far.

Who Must Comply with the Act?

“Manufacturers” of designated products sold in California must comply with the Act’s labeling and disclosure requirements. The Act defines a manufacturer as a person or entity whose name appears on the label as either: (1) the actual maker of the product, or (2) the branding distribution or retail entity for which the product is made.

What Types of Cleaning Products Are Covered by the Act?

These disclosure requirements apply to the following types of products sold in California:

air care products, automotive products, general cleaning products, and polish or floor maintenance products used for domestic, janitorial, or institutional cleaning purposes. The Act excludes food, drugs, cosmetics, and certain industrial products.

When Do the Act’s Requirements Become Effective?

The Act’s product labeling requirements apply to designated products sold in California on or after January 1, 2021. However, the Act’s online disclosure requirements apply a full year earlier (on or after January 1, 2020). Note that the applicability of this law is keyed to the date of sale, rather than the date of manufacture (likely a legislative oversight that will no doubt cause confusion in the future).

What Information Must Be Included on the Product Label?

Manufacturers of designated products sold in California on or after January 1, 2021, must disclose the following information on a product’s label:

  • 1) A list of each intentionally added ingredient that is included on any of 22 designated domestic and international regulatory listings; or
  • 2) A list of all intentionally added ingredients, unless the ingredient qualifies for non-disclosure as confidential business information.

If a designated product label does not include a full list of intentionally added ingredients, a website address must be identified where the consumer can obtain the full list. Additionally, all designated product labels must include the manufacturer’s toll-free telephone number and a website address where additional information about the chemicals can be found.

If the product contains fragrance allergens at a concentration at or above 0.01 percent (100 ppm), there are further labeling requirements.

What Information Must Manufacturers Include on Their Websites?

Manufacturers of designated products sold in California must disclose the following product information on their websites:

  • 1) A list of all intentionally added ingredients contained in the product in descending order of predominance by weight (unless the ingredient qualifies for protection as confidential business information);
  • 2) A list of all “nonfunctional constituents” present at a concentration at or above 0.01 percent (100 ppm). The Act lists 34 substances as “nonfunctional constituents,” including: 1,4-dioxane; 1,1-dichloroethane; acrylic acid; benzene; various phthalates; and more;
  • 3) The Chemical Abstracts Service (CAS) number for all intentionally added ingredients and nonfunctional constituents;
  • 4) The functional purpose served by each intentionally added ingredient that is not a nonfunctional constituent;
  • 5) Electronic links to designated regulatory lists on which all intentionally added ingredients and nonfunctional constituents appear;
  • 6) A link to the hazard communication safety data sheet for the designated product; and
  • 7) Additional specified information related to fragrance ingredients and allergens.

Manufacturers of designated products regulated under the Occupational Safety and Health Act (OSHA) must also make the above information available in an easily printable format.

How Do Manufacturers Avoid Disclosing Confidential Business Information?

A manufacturer is not required to:

  • 1) Disclose the weight or amount of an intentionally added ingredient;
  • 2) Disclose how a product is manufactured; and
  • 3) Disclose the identity of any intentionally added ingredients or mixture of ingredients that has already been accorded confidential business information protection under the federal Toxic Substances Control Act’s Confidential Inventory or for which the manufacturer claims protection under the Uniform Trade Secrets Act.

However, notwithstanding the above, all ingredients contained on any of the 22 designated regulatory listings or that are nonfunctional constituents must be disclosed.

Conclusion

Companies that manufacture or sell cleaning products in California should begin to familiarize themselves with the new requirements put into place by the Cleaning Product Right to Know Act of 2017 as soon as possible. Although companies have a few years before compliance is mandatory, because its requirements apply based on the date of a product’s sale in California and not on the date the product is manufactured or labeled, the Act could be read to require that major changes be made to labels and websites much sooner.

Morrison & Foerster llp is the leading law firm representing businesses in matters concerning Prop 65, Green Chemistry, and federal Toxic Substances Control Act issues. For more information on the Cleaning Product Right to Know Act of 2017 and what it means for your business, contact prop65@mofo.com.

Rylee Kercher Olm, an associate not yet admitted to practice in California, and Lois Miyashiro, an environmental analyst, in the firm’s San Francisco office assisted in the preparation of this client alert.

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