California Enacts Cleaning Product Right to Know Act

November 16, 2017

California Governor Brown has signed the Cleaning Product Right to Know Act of 2017 (“Act”), requiring companies to furnish online ingredient listings for cleaning products by January 1, 2020, and on package disclosure by January 1, 2021.  

The Act is similar to the federal Hazardous Substances Act and the California Hazardous Substances Information and Training Act, both of which require that ingredient information be provided to employees regarding the properties and potential hazards of hazardous substances in the workplace.  The Act applies to (a) a person or entity who manufactures the product and whose name appears on the product label, and (b) a person or entity who the product is manufactured for or distributed by, as identified on the product label pursuant to the federal Fair Packaging and Labeling Act.  It requires the listing of ingredients found in a wide variety of “cleaning products,” defined as finished products such as air care, automotive, or general cleaning products, polishes or floor maintenance products, used primarily for janitorial, domestic, or institutional cleaning purposes.

Notably, the Act specifically requires the listing of ingredients that are carcinogens, reproductive or developmental toxins, mutagens, neurotoxins, or those that have persistent or bioaccumulative properties.  The Act’s definition of ingredient is quite broad, and includes 22 separate references to chemical listings (each, a “Designated List”), including for California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65), which alone contains nearly 1,000 chemicals.  Also included are “fragrance allergens” when such ingredients are listed in Annex III of the EU Cosmetics Regulation No. 1223/2009 and included in the cleaning product at or above certain threshold concentrations.

The law provides exclusions for personal-care products such as toothpaste, shampoo, and hand soap, trial samples of designated products that are not packaged for individual sale, resale, or retail, and industrial products specifically manufactured for, and exclusively used in, oil and gas production, steel production, heavy industry manufacturing, industrial water treatment, industrial textile maintenance and processing (other than industrial laundering), food and beverage processing and packaging, and certain other industrial manufacturing processes.

The law also provides for business confidentiality exclusions as to ingredients which have been  approved by the federal Environmental Protection Agency for inclusion on the Toxic Substances Control Act (“TSCA”) Confidential Inventory, or for which the manufacturer or its supplier claim protection under the Uniform Trade Secrets Act.  

The regulated community has raised concerns that the codification of the Designated Lists, often referred to as the “list of lists,” is overbroad.  Many of these lists are developed in other countries, such that California would not have direct control over the inclusion of specific chemicals.  

Manufacturers will need to carefully scrutinize the Designated Lists; if the ingredient is included, even if it is rejected for inclusion on other lists, compliance with the Act would be required.

Once the law takes effect in 2020, it may well serve as a basis for litigation comparable to what we have seen under Proposition 65.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Kelly McTigue, an O'Melveny partner licensed to practice law in California, Eric Rothenberg, an O'Melveny partner licensed to practice law in New York, Dawn Sestito, an O'Melveny partner licensed to practice law in California, and Bob Nicksin, an O'Melveny counsel licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted. 

© 2017 O’Melveny & Myers LLP. All Rights Reserved. Portions of this communication may contain attorney advertising.  Prior results do not guarantee a similar outcome. Please direct all inquiries regarding New York’s Rules of Professional Conduct to O’Melveny & Myers LLP, Times Square Tower, 7 Times Square, New York, NY, 10036, T: +1 212 326 2000.