The Rise of Ingredient Disclosure: The California and New
York Experience
By Lynn L. Bergeson
In the recent past, two important states—California and New York—havelaunched extensive and precedent‐setting ingredient disclosure laws
regarding cleaning products with the clear goal of prompting the deselectionof certain chemical substances and forcing product reformulation. Industry
prefers to refer to this trend as “ingredient communication,” a goal we can
all agree is desirable. By whatever name, these state measures will have asignificant impact on ingredient disclosure trends across product lines, likely
well beyond their stated application to cleaning products. These state laws
are summarized below, followed by a discussion of their similarities, key
differences, and their implications.
CALIFORNIA'S CLEANING PRODUCT RIGHT TO KNOW ACT OF 2017
On October 15, 2017, then‐California Governor Jerry Brown, Democrat (D),signed the Cleaning Product Right to Know Act of 2017 (Senate Bill [S.B.]
258; State of California, 2017). The law requires manufacturers of cleaningproducts to disclose certain chemical ingredients on the product label and on
the manufacturer's website. The online disclosure requirements apply to a
designated product sold in California on or after January 1, 2020. The
product label disclosure requirements apply to a designated product sold in
California on or after January 1, 2021.
Section 108954(a) of the California's Cleaning Product Right to Know Act of2017 requires a manufacturer of a designated product sold in California todisclose several categories of information. The required disclosure elements(unless the ingredient is confidential business information) include:{00501.009 / 111 / 00270708.DOCX}} This is a reprint of an article published in Environmental Quality
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•

A list of each “intentionally added ingredient” contained in a productthat is included on a “designated list” (State of California, 2017;
Section 108954(a)(1)(9A));•

A list of each specified fragrance allergen, when present in the productat a concentration at or above 0.01% (100 parts per million (ppm);
State of California, 2017; Section 108954(a)(1)(B)); and•An intentionally added ingredient that is listed on the California's Safe
Drinking Water and Toxic Enforcement Act, also known as theCalifornia Proposition 65 (Prop 65) list (State of California, 2017;
Section 108954(a)(1)(C); enforceable after January 1, 2023).

Under the Act, a “designated product” is defined as “a finished product thatis an air care product, automotive product, general cleaning product, or apolish or floor maintenance product used primarily for janitorial, domestic, or
institutional cleaning purposes” (State of California, 2017; Section
108952(f)). Excluded products include foods, drugs, and cosmetics and avariety of personal care products, including toothpaste, shampoo, and handsoap.
An “intentionally added ingredient” is defined as “a chemical that amanufacturer has intentionally added to a designated product and that has afunctional or technical effect in the designated product, including, but notlimited to, the components of intentionally added fragrance ingredients andcolorants and intentional breakdown products of an added chemical that also
have a functional or technical effect in the designated product” (State ofCalifornia, 2017; Section 108952(k)). A nonfunctional constituent is definedas one of 35 substances that is an incidental component of an intentionallyadded ingredient, a breakdown product of an intentionally added ingredient,or a by‐product of the manufacturing process that has no functional or
technical effect on the designated product (State of California, 2017;
Section 108952(m)), including, 1,4 dioxane, 1,1 dichloroethane, acrylic acid,and benzene. Confidential Business Information (CBI) includes any
intentionally added ingredient for which a claim has been approved by the
U.S. Environmental Protection Agency (EPA) for inclusion on the Toxic
Substances Control Act Confidential Inventory, or for which the
manufacturer, or its supplier, claims protection under the Uniform Trade
Secrets Act.

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“Designated list” refers to a heroically long aggregated list of more than 20
state, federal, and international lists of chemical substances identified byname in the regulation. The list includes the usual suspects: Prop 65;
chemicals classified by the European Union (EU) as carcinogens, mutagens,or reproductive toxicants; chemicals included in the EU Candidate List of
Substances of Very High Concern (SVHC) for endocrine disrupting
properties, persistent, bioaccumulative, and toxic (PBT) properties, or very
persistent and very bioaccumulative (vPvB) properties; and many, manyothers (State of California, 2017; Section 108952(g)).
The online disclosure requirements apply to designated products sold in
California on or after January 1, 2020, a date that is fast approaching. The
product label disclosure requirements will apply to designated products soldin California on or after January 1, 2021. Under the program, a designatedproduct manufactured before these dates will be deemed to be in complianceonly if the designated product displays either the date of manufacture or acode indicating the date of manufacture. Manufacturers may label
designated products manufactured before January 1, 2021, in accordancewith the requirements.
NEW YORK'S HOUSEHOLD CLEANSING PRODUCTINFORMATION DISCLOSURE PROGRAM
On April 25, 2017, New York Governor Andrew Cuomo (D) announced an
initiative to require manufacturers of household cleansing products sold in
New York to disclose the chemical ingredients on their websites (New YorkState, Governor's Office, 2017). According to the press release,manufacturers are required to identify all the ingredients and impurities intheir products, including those that are “chemicals of concern,” as well as
their content by weight in ranges. According to the New York State
Department of Environmental Conservation (DEC), the agency implementing
the program, authority for the program derives from Article 35 of theEnvironmental Conservation Law and New York Code of Rules andRegulations Part 659, authority that dates back to the 1970s. DEC published
Disclosurea draft 2017 Household Cleansing Product Information
Certification Form and Guidance Document for public comment (DEC,
Division of Materials Management [DoMM], 2017). Although the enablinglaw states that DEC must proceed by regulation, DEC's draft “GuidanceDocument” (Guidance) outlined critical elements of the disclosure program.
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on July 14, 2017. DEC announced the new ingredient disclosure program inJune 2018.
The program applies to “household cleansing products” defined to include
soaps and detergents, containing a surfactant as a wetting or dirt
emulsifying agent, and used primarily for “domestic or commercial cleaning
purposes” (DEC, DoMM, 2017, p. 8). Personal care items are excluded, as
are products intended for use primarily in industrial manufacturing,production, and assembling processes.
The Guidance states that information to be disclosed on manufacturer
websites is to be grouped into several categories. First, product andmanufacturer information is required to be disclosed, including a descriptionof the product, its use and form (e.g., liquid and powder), whether the
product contains fragrance ingredients, including ingredients added to mask
the scent of other ingredients (solvents, surfactants) in so‐called unscented
products; and the complete name of the company that manufactures the
final product. Second, all ingredients intentionally added to a covered
product, including those present in trace quantities, must be disclosed unless
withheld as CBI. All ingredients present only as an unintended consequenceof manufacturing and present above trace quantities should be disclosed
where the manufacturer “knows or should reasonably know” of the presenceof such ingredients, impurities, or contaminants, unless withheld as CBI.
Third, unless such information is not available, not known, or withheld as
CBI, the Chemical Abstracts Index Name and Chemical Abstracts Service
Registry Number, percentage of content by weight, GreenScreen
benchmark, whether there is a “nano” component, and the role of thecomponent in the formulation must be disclosed. Fourth, “chemicals ofconcern” must be disclosed. Similar to the California program, a chemical ofconcern is any chemical substance listed on one or more of anotherheroically long list of chemicals. Finally, human health and environmental
effects information must be disclosed. Manufacturers must also post on theirwebsites information regarding the nature and extent of investigations andresearch performed by or for the manufacturer concerning the effects onhuman health and the environment of covered products or the chemical
ingredients of such products. This last requirement is truly consequential andincludes posting information on research performed by the manufacturer orat the direction of the manufacturer. The Guidance anticipates the posting oflinks to the actual studies, and not merely a summary of them.
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The program is not static. Manufacturers are required to update theirdisclosures each time the ingredients in a product are changed, or a new
product is introduced to the market. Legacy data for discontinued products
should be posted until the expiration date of the product. All disclosed
information should be reviewed, at a minimum, once every two years,
including the presence of a product or ingredients on a priority hazard list, or
whether a product or ingredient meets a hazard characteristic.
DISCUSSION
These new state programs are formidable and, unfortunately for the productmanufactures subject to them, quite different. Part of the programs’
nonalignment stems from the fact that industry trade groups worked closelywith California in crafting the California program. Its provisions were
carefully vetted, understood, and largely accepted before issuance. Not sowith regard to the New York program. Although Governor Cuomo had
indicated his desire for an ingredient disclosure law in his 2017 State of theState address, the program that was eventually rolled out was notextensively vetted and did not reflect in key cases the views or broad
support of the regulated community. The two programs were developed inisolation of one another, not in tandem. And, importantly, despite the factthat New York's Disclosure Program was released only eight months after
California's S.B. 258, DEC intended to require the first phase of its
implementation six months earlier, or by July 1, 2019. This, too, has inspired
concern within the household cleaning products industry.
To get a flavor of some of the reasons for industry concern, a brief review of
two key differences between California's Cleaning Product Right to Know Act
of 2017 and New York's Household Cleansing Product Information Disclosure
Program is instructive. Although there is some overlap in the lists ofchemicals of concern—Prop 65, carcinogens identified by the International
Agency for Research on Cancer (IARC), SVHCs, neurotoxicants identified by
the Agency for Toxic Substances and Disease Registry (ATSDR), PBT
chemicals covered by EPA's Toxics Release Inventory (TRI) Program—New
York's program is more expansive. If a product or ingredient meets one ormore of certain named “hazard characteristics” listed in the draft Guidance,such information must be disclosed, even if the ingredient or chemical is notlisted elsewhere. In addition, under New York's Program, ingredients with aGreenScreen benchmark and “nanomaterial” ingredients must be identified.
For each ingredient, a term describing its functional use or reason for{00501.009 / 111 / 00270708.DOCX}} This is a reprint of an article published in Environmental Quality
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inclusion should be disclosed. These requirements are not based on a risk
finding. Nano stakeholders in particular are unhappy with the potentiallystigmatizing impact of the nano disclosure requirement.
California requires the disclosure of intentionally added ingredients—“achemical that a manufacturer has intentionally added to a designatedproduct and that has a functional or technical effect in the designatedproduct, including, but not limited to, the components of intentionally added
fragrance ingredients and colorants and intentional breakdown products ofan added chemical that also have a functional or technical effect in thedesignated product” (State of California, 2017; Section 108952(k)).
Nonfunctional constituents—certain
substances that are
incidental
components of intentionally added ingredients, breakdown products ofintentionally added ingredients, or by‐products of the manufacturing processthat have no functional or technical effect on the designated product—must
also be identified (State of California, 2017; Section 108952(m)). New Yorkrequires more, and the Guidance specifies that disclosure is required for all
ingredients intentionally added to a covered product, including those present
in trace quantities, and chemicals where the manufacturer “knows or should
reasonably know” of such ingredients, including impurities, contaminants,
breakdown products, and chemicals that are the unintended consequence ofthe product formulation process (DEC, DoMM, 2017; pp. 11–12). The
manufacturer requirements are more clear‐cut under California's program
than under New York's, and manufacturers should be able to makedisclosure decisions with a higher degree of precision. Under New York's
program, it is unclear exactly what a manufacturer should reasonably know
with regard to impurities or contaminants present only as an unintended
consequence of manufacturing.
That the two programs are not aligned is a key concern. This lack ofalignment inspired two trade associations, the Household and Commercial
Products Association and the American Cleaning Institute, to challenge the
New York Disclosure Program in court. According to a Joint Statement issued
by the trade associations, the suit alleges DEC violated important
administrative procedures and that its refusal to work with industry has
created an “unworkable and impractical” policy that should be retracted sothat a consistent national model for ingredient communication can be
implemented instead (ACI & HCPA, 2018). Some claim that DEC exceeded
its legal authority by issuing the Disclosure Program under the authority of
the Environmental Conservation Law, a law that, as noted, was enacted over{00501.009 / 111 / 00270708.DOCX}} This is a reprint of an article published in Environmental Quality
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four decades ago and contemplated notice and comment rulemaking.
Although public comment was solicited on the draft Guidance, reasonablepeople will disagree as to whether this process satisfies the requirements of
a formal rulemaking.
Perhaps in response to the litigation, on January 9, 2019, DEC announced it
was delaying its enforcement of the New York Disclosure Program to October
1, 2019, from July 1, 2019. DEC's announcement was published in its
Environmental Notice Bulletin.
IMPLICATIONSThe household products community has long recognized the importance ofingredient communication and has worked hard to develop communication
strategies that are both helpful to consumers and mindful of the need for
CBI protections. The California program was expected to serve as a model inthis regard. That the New York program reflects significant areas ofnonalignment is troubling. The questionable legal basis for the program may
not bode well for the ultimate disposition of the litigation challenging the
program, and the lawsuit has certainly dimmed the hopes of ingredientdisclosure enthusiasts seeking a more durable regulatory program in New
York.
Regardless, it is fair to conclude that these programs, and others in states
thinking about similar disclosure programs, are likely to become part of the
new normal and unlikely to recede. Indeed, on January 21, 2019, New York
Governor Cuomo announced as part of his Executive Budget a proposal
intended to protect New Yorkers from “unknown exposure to toxic
chemicals” (New York State, Governor's Office, 2019). According toGovernor Cuomo's press release, the Consumer Right to Know Act would
authorize DEC, in consultation with the New York State Department of
Health and the New York State Department of State, to develop regulations
establishing on‐package labeling requirements for designated products
indicating the presence of potentially hazardous chemicals, including
carcinogens.
Under the proposal, the agencies would assess the feasibility of on‐packagelabeling and develop regulations establishing a labeling requirement for
designated products, creating a list of more than 1,000 carcinogens andother chemicals that would trigger labeling, and identifying the types ofconsumer products that would be subject to the new regime. The press{00501.009 / 111 / 00270708.DOCX}} This is a reprint of an article published in Environmental Quality
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release states that the proposal would extend DEC's Cleansing Product
Information Disclosure Program requirements “to cover all cleaning products
sold in New York State,” and it will give New York State Department of
Health “the authority to require similar disclosure for the manufacturers of
personal care products like shampoo, deodorant or baby powder” (New YorkState, Governor's Office, 2019). According to the press release, theproposal would require cleaning product and personal care productmanufacturers to “make certain product ingredient information publicly
available on their websites and on a publicly accessible database” (New YorkState, Governor's Office, 2019). The Cleansing Product Information
Disclosure Program already requires manufacturers to make certain productingredient information publicly available on their websites.
Stay tuned. We likely are only just getting started. Unless Congress seeks topreempt disparate state programs or activists’ pursuit of enhanced
ingredient disclosure somehow subsides, dealing with these “one‐off” state
programs may be here to stay.

Authors Biography
Lynn L. Bergeson is Managing Partner of Bergeson & Campbell, P.C. (B&C), a
Washington, DC, law firm focusing on conventional, nanoscale, and biobasedindustrial, agricultural, and specialty chemical product regulation andapproval matters, environmental health and safety law, chemical productlitigation, and associated business counseling and litigation issues. Lynn isalso President of The Acta Group (Acta), with offices in Washington, DC,
Manchester, UK, and Beijing, China, and President of B&C Consortia
Management, L.L.C. (BCCM) with offices in Washington, DC. A version of thisarticle was submitted to the American Bar Association (ABA) Section ofEnvironment Energy and Resources (SEER) Spring Meeting in April 2018.

{00501.009 / 111 / 00270708.DOCX}} This is a reprint of an article published in Environmental Quality
Management, Volume 28, Issue 3, Spring 2019.
© 2019 Wiley Periodicals, Inc.