Less Than One Month until California Online Ingredients Disclosure Requirements in Effect for Designated Cleaning Products

There is less than one month before the effective date of the online requirements set forth in California’s Cleaning Product Right to Know Act of 2017 (S.B. 258). S.B. 258 sets forth new requirements on manufacturers of “designated products” to disclose certain chemical ingredients on the manufacturer’s website and product label. The online ingredient disclosure requirements set forth under California’s law are applicable to designated products sold in California as of January 1, 2020. The product label disclosure requirement is applicable to designated products sold in California on or after January 1, 2021.

The general parameters of California’s requirements are as follows:

• Scope of Products Covered: S.B. 258 applies to manufacturers of “designated products” sold in California. A “designated product” is defined as “a finished product that is an air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic, or institutional cleaning purposes.” Each of these terms is defined in S.B. 258. For example, “general cleaning product” is defined as: “a soap, detergent, or other chemically formulated consumer product labeled to indicate that the purpose of the product is to clean, disinfect, or otherwise care for fabric, dishes, or other wares; surfaces including, but not limited to, floors, furniture, countertops, showers, and baths; or other hard surfaces, such as stovetops, microwaves, and other appliances.”

Products that are excluded from the definition of “designated products” include foods, drugs, and cosmetics and a variety of personal care products, including toothpaste, shampoo, and hand soap. Importantly, while the U.S. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulated products are exempt from label disclosure requirements, they are subject to website disclosure requirements.

In addition, California excludes products used primarily in industrial manufacturing, production, and assembling processes, including oil and gas production; steel production; heavy industry manufacturing; industrial water treatment; industrial textile maintenance and processing other than industrial laundering; and food and beverage processing and packaging.

• Ingredient Disclosure Requirements: The required disclosure elements (unless the ingredient is confidential business information) include:
•  A list of each “intentionally added ingredient” contained in a product that is included on a “designated list” (i.e., one of more than 20 state, federal, and international lists (the so-called “list of lists”)) set forth in Section 108952(g) of S.B. 258:

1. Chemicals known to the State of California to cause cancer or reproductive toxicity that are listed pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 (Chapter 6.6 (commencing with Section 25249.5 of Division 20)).
    
2. Chemicals classified by the European Union as carcinogens, mutagens, or reproductive toxicants pursuant to Category 1A or 1B in Annex VI to Regulation (EC) 1272/2008.
    
3. Chemicals included in the European Union Candidate List of Substances of Very High Concern in accordance with Article 59 of Regulation (EC) 1907/2006 on the basis of Article 57(f) for endocrine disrupting properties.
    
4. Chemicals for which a reference dose or reference concentration has been developed based on neurotoxicity in the federal Environmental Protection Agency’s Integrated Risk Information System.
    
5. Chemicals that are identified as carcinogenic to humans, likely to be carcinogenic to humans, or as Group A, B1, or B2 carcinogens in the federal Environmental Protection Agency’s Integrated Risk Information System.
    
6. Chemicals included in the European Chemicals Agency Candidate List of Substances of Very High Concern in accordance with Article 59 of Regulation (EC) 1907/2006 on the basis of Article 57(d), Article 57(e), or Article 57(f) of Regulation (EC) 1907/2006 for persistent, bioaccumulative and toxic, or very persistent and very bioaccumulative properties.
    
7. Chemicals that are identified as persistent, bioaccumulative, and inherently toxic to the environment by the Canadian Environmental Protection Act Environmental Registry Domestic Substances List.
    
8. Chemicals classified by the European Union in Annex VI to Regulation (EC) 1272/2008 as respiratory sensitizer category 1.
    
9. Group 1, 2A, or 2B carcinogens identified by the International Agency for Research on Cancer.
    
10. Neurotoxicants that are identified in the federal Agency for Toxic Substances and Disease Registry’s Toxic Substances Portal, Health Effects of Toxic Substances and Carcinogens, Nervous System.
     
11. Persistent bioaccumulative and toxic priority chemicals that are identified by the federal Environmental Protection Agency National Waste Minimization Program.
     
12. Reproductive or developmental toxicants identified in Monographs on the Potential Human Reproductive and Developmental Effects published by the federal National Toxicology Program, Office of Health Assessment and Translation.
     
13. Chemicals identified by the federal Environmental Protection Agency’s Toxics Release Inventory as Persistent, Bioaccumulative and Toxic Chemicals that are subject to reporting under Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. Sec. 11001, et seq.).
     
14. The Washington Department of Ecology’s Persistent, Bioaccumulative, Toxic (PBT) Chemicals identified in Chapter 173-333 of Title 173 of the Washington Administrative Code.
     
15. Chemicals that are identified as known to be, or reasonably anticipated to be, human carcinogens by the 13th Report on Carcinogens prepared by the federal National Toxicology Program. Subsequent revisions to this list shall not be incorporated.
     
16. Chemicals for which notification levels, as defined in Section 116455, have been established by the State Department of Public Health or the State Water Resources Control Board.
     
17. Chemicals for which primary maximum contaminant levels have been established and adopted under Section 64431 or 64444 of Title 22 of the California Code of Regulations.
     
18. Chemicals identified as toxic air contaminants under Section 93000 or 93001 of Title 17 of the California Code of Regulations.
     
19. Chemicals that are identified as priority pollutants in the California water quality control plans pursuant to subdivision (c) of Section 303 of the federal Clean Water Act and in Section 131.38 of Title 40 of the Code of Federal Regulations, or identified as pollutants by the state or the federal Environmental Protection Agency for one or more water bodies in the state under subdivision (d) of Section 303 of the federal Clean Water Act and Section 130.7 of Title 40 of the Code of Federal Regulations.
     
20. Chemicals that are identified with noncancer endpoints and listed with an inhalation or oral reference exposure level by the Office of Environmental Health Hazard Assessment pursuant to paragraph (2) of subdivision (b) of Section 44360.
     
21. Chemicals identified as priority chemicals by the California Environmental Contaminant Biomonitoring Program pursuant to Section 105449.
     
22. Chemicals that are identified on Part A of the list of Chemicals for Priority Action prepared by the Oslo and Paris Conventions for the Protection of the Marine Environment of the North-East Atlantic.
     

• A list of any of 34 “nonfunctional constituents” identified in the regulations present in the designated product at a concentration at or above 0.01 percent (100 parts per million (ppm)) (or, in the case of 1,4-dioxane, a concentration at or above 0.001 percent (10 ppm);

The list of the 34 ingredients is set forth in Section 108952(m) of S.B. 258:

1. 1,4 dioxane.
    
2. 1,1 dichloroethane.
    
3. Acrylic acid.
    
4. Benzene.
    
5. Benzidine.
    
6. 1,3 butadiene.
    
7. Carbon tetrachloride.
    
8. Chloroform.
    
9. Ethylene oxide.
    
10. Nitilotriacetic acid. [sic]
     
11. Butyl benzyl phthalate.
     
12. Butyl decyl phthalate.
     
13. Di(2-ethylhexyl) phthalate.
     
14. Diethyl phthalate.
     
15. Diisobutyl phthalate.
     
16. Di(n-octyl) phthalate.
     
17. Diisononyl phthalate.
     
18. Dioctyl phthalate.
     
19. Butylparaben.
     
20. Ethylparaben.
     
21. Isobutylparaben.
     
22. Methylparaben.
     
23. Propylparaben.
     
24. Formaldehyde.
     
25. 1-(3-chloroallyl)-3,5,7-triaza-1-azoniaadamantane chloride.
     
26. DMDM hydantoin.
     
27. Diazolidinyl urea.
     
28. Glyoxal.
     
29. Imidazolidinyl urea.
     
30. Polyoxymethylene urea.
     
31. Sodium hydroxymethylglycinate.
     
32. 2-Bromo-2-nitropropane-1,3-diol.
     
33. N-Nitrosodimethylamine.
     
34. N-Nitosodiethylamine. [sic]
     

• A list of each specified fragrance allergen, when present in the product at a concentration at or above 0.01 percent (100 ppm);

This can include fragrance ingredients that are included on a “designated list” of fragrance allergens included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labeled by the EU Detergents Regulation No. 648/2004, or subsequent updates to those regulations.

• An intentionally added ingredient that is listed on California’s Safe Drinking Water and Toxic Enforcement Act, also known as the California Proposition 65 (Prop 65) list (although this element is not enforceable until January 1, 2023).
   
• Website Disclosure Elements: To be compliant with the website disclosure requirements, in addition to determining the ingredients to be disclosed, companies must also:
   
• Include the functional purpose of each ingredient (e.g., solvent, fragrance).
   
• List ingredients in descending order of predominance by weight in the product. If concentration of an ingredient is below one percent, a company can list them following the other ingredients without respect to the order of predominance by weight.
   
• Include a link to a Safety Data Sheet (SDS) for the covered product.

The information posted on the website must be “in an electronically readable format” which is defined under the law to mean that the information provided is all of the following:

1. Machine readable by automated systems, including, but not limited to, Web browsers, accessibility software to aid the disabled, automated scripts, and other software programs or applications.
    
2. Not restricted from access by search engines.
    
3. Not restricted from access by a requirement for registration, the provision of personally identifiable information, or the use of CAPTCHA or similar challenge response test technologies, whether visual, auditory, or otherwise.
    
4. Conforms to the most current version of the Web Content Accessibility Guidelines (WCAG) adopted by the Web Content Accessibility Guidelines Working Group of the World Wide Web Consortium.

• Label Disclosure Elements: As noted above, FIFRA-regulated products are exempt from label disclosure requirements; non-FIFRA regulated cleaning products, however, may be subject to the label disclosure requirements applicable to designated products sold in California on or after January 1, 2021.

California provides two options for complying with the label disclosure requirements:

• Option 1: Provide: (1) a list of each intentionally added ingredient contained in the product that is included on a Designated List (~25,000 substances); and (2) a list of each fragrance allergen included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labeled by the EU Detergents Regulation No. 648/2004 on January 1, 2018, or subsequent updates to those regulations, when present in the product at a concentration at or above 0.01 percent (100 ppm); or
   
• Option 2: Provide (1) a list of all intentionally added ingredients contained in the designated product unless it is CBI. Fragrance ingredients or colorants may be listed on the product label as “fragrances” or “colorants,” respectively; and (2) a statement that reads “Contains fragrance allergen(s)” shall be included on the product label when a fragrance allergen included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labeled by the EU Detergents Regulation No. 648/2004, or subsequent updates to those regulations, is present in the product at a concentration at or above 0.01 percent (100 ppm).

Under either option, California requires manufacturers to also provide on the label: (1) the manufacturer’s toll-free telephone number and (2) an Internet website address on the designated product label. If a full list of intentionally added ingredients is not provided, then the label must also include: (1) a statement that reads: “For more ingredient information visit”; (2) an address for an Internet website that provides all information required for online communications (Section 108954.5); and (3) a toll-free number.

• Confidential Business Information (CBI): CBI can be claimed for any intentionally added ingredient for which a claim has been approved by EPA for inclusion on the TSCA Confidential Inventory or for which the manufacturer, or its supplier, claims protection under the Uniform Trade Secrets Act.

A CBI claim is not permitted for an intentionally added ingredient or combination of ingredients that is on a designated list; a nonfunctional constituent; or a fragrance allergen included on Annex III of the European Union (EU) Cosmetics Regulation No. 1223/2009 as required to be labeled by the EU Detergents Regulation No. 648/2004, or subsequent updates to those regulations, when present in the product at a concentration at or above 0.01 percent (100 parts per million).

• Requirements for Employers: S.B. 258 also contains an amendment to Section 6398.5 of the Labor Code, providing that employers that are required to make SDSs readily accessible to employees must now also make the ingredient information listed on a manufacturer’s website available to employees in the workplace.

Discussion

Any company that sells cleaning products in California must review this new law to determine whether they sell a “designated product.” For any product that is covered under S.B. 258, companies must ensure compliance with the online disclosure requirements. This requires an understanding of each product’s formula so that determinations can be made regarding the need to disclose any intentionally added ingredients, non-functional constituents, and/or fragrances. While the disclosure requirements are relatively straightforward, it should be noted that there is little guidance available, so questions about the scope and requirements of this law need to be identified immediately in the hope that responses can be determined before the January 1, 2020, deadline.