Cleaning Products, Air Fresheners, and Automotive Products Sold In California Must Disclose Ingredients in 2020

California Governor Jerry Brown signed the Cleaning Product Right to Know Act into state law in late 2017, making California the second state to require the disclosure of information about ingredients found in cleaning products. The Act contains two disclosure provisions; the first, an online compliance portion, is scheduled to go into effect in 2020. The second, a labeling requirement, will take effect a year later.

Pursuant to the Act, manufacturers of “general cleaning products,” “air care products,” and “automotive products” sold in California must disclose ingredients on their product labels and online. The definitions of applicable products are broad, and include soap, detergent, products intended to freshen the air, and products intended to maintain the appearance of a motor vehicle. Notably, automotive paint products and pesticides are excluded. In addition to the actual manufacturers of applicable products, the Act also applies to entities for which the products are manufactured or by which the product is distributed. The Act further prohibits California retailers from selling products that do not comply with the new disclosure requirements.

For the labeling requirement, the Act permits the manufacturer to choose one of two sets of information to disclose on the product’s label: (1) each fragrance allergen contained in the product that is included in Annex III of the EU Cosmetics Regulation Number 1223/2009 as required to be labeled by the EU Detergents Regulation Number 648/2004 (“Annex III”), when present in the product at a concentration of .01% or above (100 ppm), and intentionally added ingredients contained in the product that are included on a “designated list,” or (2) a list of all intentionally added ingredients contained in the product, unless the ingredient qualifies as confidential business information (“CBI”).

For the first option, the designated Annex III list includes chemicals found on twenty-two regulatory lists published by state governments, the European Union, the federal government, the Canadian government, and international agencies.

The second option requires the disclosure of all intentionally added ingredients, with the exception of ingredients that qualify as CBI. However, CBI is defined narrowly, and does not apply to ingredients found on the designated list, all nonfunctional constituents, and all fragrance allergens included in Annex III when present at a concentration of .01% or above. A manufacturer can list fragrance ingredients and colorants generally as such, but the label must also state that the product “[c]ontains fragrance allergen(s),” if it contains a fragrance allergen that is included on Annex III at .01% concentration or above.

In addition to the labeling requirements, a manufacturer must starting in 2020 disclose certain information on its website. The Act requires manufacturers to list every intentionally added ingredient in descending order of predominance (except for CBI and fragrance ingredients), state the purpose of each intentionally added ingredient, and provide links to the regulatory lists on which the ingredient appears. The manufacturer must also list all nonfunctional constituents that are found in the product at a concentration of .01% or more.

Interestingly, the Act does not create a mechanism for enforcement nor does it impose penalties for violations. California statutes without enforcement provisions are often enforced by private litigants and district attorneys under the state’s consumer protection laws. However, while private litigants may only seek injunctive relief under these laws, actions brought by government officials are eligible for the recovery of civil penalties up to $2,500 for each violation. It is anticipated that the Act will be enforced most often through this mechanism.

California’s Cleaning Product Right to Know Act goes further than current federal disclosure obligations, which simply require that consumer and industrial cleaning products provide warnings about the physical and health hazards, but do not require full ingredient lists. It is indicative of a nationwide trend of increased state regulation of chemicals found in consumer products in the absence of significant federal regulation.

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