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June 8, 2018

New York Household Cleansing Product Disclosure Program Will Require Disclosure of Nano Ingredients

Lynn L. Bergeson Carla N. Hutton

As reported in our June 7, 2018, memorandum, the New York State Department of Environmental Conservation (NYSDEC) on June 6, 2018, released its final policy and form for manufacturer disclosures under the Household Cleansing Product Information Disclosure Program.  The Household Cleansing Product Information Disclosure Program requires manufacturers of cleaning products sold in New York to disclose chemical ingredients and identify any ingredients that appear on authoritative lists of chemicals of concern on their websites.  According to the Household Cleansing Product Information Disclosure Program Certification Form and Program Policy, for each ingredient that is a nanoscale material, a term describing the nanoscale material should be disclosed.  For example, if the nanoscale material is carbon, the disclosure should use the term “nanoscale” carbon.  NYSDEC’s Program Policy states that a nanoscale material “is a chemical substance that meets the [Toxic Substances Control Act (TSCA)] definition of a reportable chemical substance manufactured or processed at the nanoscale.  That definition provides, in part, that a ‘reportable chemical substance is a chemical substance as defined in Section 3 of TSCA that is solid at 25° C and standard atmospheric pressure, that is manufactured or processed in a form where any particles, including aggregates and agglomerates, are in the size range of 1-100 nanometers in at least one dimension, and that is manufactured or processed to exhibit unique and novel properties because of its size.  A reportable chemical substance does not include a chemical substance that is manufactured or processed in a form where less than 1% of any particles, including aggregates, and agglomerates, measured by weight are in the size range of 1-100 nanometers.’”

According to the response to comments, a commenter suggested that NYSDEC delete the definition of nanomaterial, as “no unified determination of the definition of nanomaterial exists.”  NYSDEC responded that the U.S. Environmental Protection Agency (EPA) “requires disclosure of nanoscale materials under TSCA.  In doing so, they have created a definition for what is considered a nanoscale material.”  NYSDEC updated the Program Policy “to harmonize with this EPA definition.”  Another commenter stated that the requirement to disclose nanomaterials should be removed, and that NYSDEC should rely on TSCA/the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  NYSDEC responded that “[t]he requirement to disclose nanoscale materials is important as the potential human health and environmental effects of such substances are not yet fully understood.  However, the disclosure of this information is subject to [confidential business information (CBI)] claims.”

NYSDEC has mischaracterized EPA’s one-time reporting rule as a disclosure program, and suggested that the definition used by EPA for the purposes of this one-time reporting rule applies to other TSCA regulations.  As noted in our memorandum, the scope of the New York Cleansing Products Disclosure Program may be just the beginning of many more product lines to be subject to disclosure.  That these “ingredient disclosure” programs are beginning to populate the commercial landscape is likely to be cause for concern by product manufacturers.  New York may simply be the first state to use the TSCA Section 8(a) reporting rule’s definition of a reportable chemical substance for its own purposes.