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REGULATORY MEMORANDUM |
New York Launches Disclosure Program Intended to Protect Consumers from Chemicals in Household Cleaning ProductsIn somewhat of a surprise announcement, 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 Disclosure Program is similar to the recently enacted California Cleaning Product Right to Know Act of 2017 which requires the disclosure of cleaning product ingredients by way of website or product label. 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. New York states that it “will be the first state in the nation to require such disclosure and the State’s program goes beyond initiatives in other states by requiring the robust disclosure of byproducts and contaminants, as well as chemicals with the potential to trigger asthma in adults and children.” NYSDEC has posted the Household Cleansing Product Information Disclosure Program Certification Form and Program Policy and a response to comments. DISCLOSURE CERTIFICATION FORM The Disclosure Certification Form states that “[i]n brief, information to be disclosed should be posted on a manufacturer’s website in a manner that is obvious, noticeable and readily accessible, via the internet, to the public.” In cases where information is withheld from the public as confidential business information (CBI), “the nature and degree of the information withheld should be disclosed, but such information should not be submitted to the Department or posted on the web.” Manufacturers must submit the Disclosure Certification Form to NYSDEC and it must be signed by a senior management official certifying that the disclosed information is true, accurate, and complete to the best of their knowledge. HOUSEHOLD CLEANSING PRODUCT INFORMATION DISCLOSURE PROGRAM POLICY Covered Products and Definitions The Program Policy states that cleansing products covered by the Program “include but are not limited to ‘soaps and detergents containing a surfactant as a wetting or dirt emulsifying agent and used primarily for domestic or commercial cleaning purposes, including but not limited to the cleansing of fabrics, dishes, food utensils and household and commercial premises.’” The Program does not cover “foods, drugs and cosmetics, including personal care items such as toothpaste, shampoo and hand soap”; “products labeled, advertised, marketed and distributed for use primarily as pesticides, as defined in Article 33 of the Environmental Conservation Law”; or “cleansing products used primarily in industrial manufacturing, production and assembling processes.” Other definitions include:
CBI and Extent of Disclosure For purposes of the Program Policy, CBI is any record(s) that would be exempt from disclosure as either a trade secret or confidential commercial information pursuant to Title 6 of the New York Code of Rules and Regulations (NYCRR) 616.7. Where information is withheld from the public as CBI, the extent of disclosure must be displayed, but the manufacturer should not submit the information being withheld to NYSDEC or post the information being withheld on its website. A manufacturer that withholds information as CBI should maintain the justification for withholding consistent with 6 NYCRR 616.7, and provide that justification upon request to NYSDEC. According to the Program Policy, suppliers to manufacturers may also raise a CBI claim. A supplier to a manufacturer that protects an intentionally added ingredient or nonfunctional ingredient as CBI should maintain justification for withholding consistent with 6 NYCRR 616.7, and provide that justification upon request to NYSDEC. The manufacturer should use the generic name provided by the supplier and provide the supplier’s contact information to NYSDEC upon request. Information to be Disclosed The Program Policy states that each category of information disclosed should be posted in close proximity to all other required categories on one web page, including but not limited to the manufacturer’s name and contact information. “Pop ups” or one-click links to a separate web page are acceptable as long as they conform with all of the requirements regarding accessibility and machine readability listed in the Program Policy. According to the Program Policy, manufacturers may post marketing language on the same web page, but may not insert the language between the statement regarding “Extent of Disclosure” and the list of product ingredients, and should not interfere with any required information entries. Manufacturers should prove a link to the Program Policy to provide more information on the meaning of commonly used terms, such as “Chemical Abstracts Service (CAS) number” or “nanoscale material.” The Program Policy notes that the information required to be disclosed “may be disclosed in a hazard communication safety data sheet for a product as long as it is posted on the manufacturer’s website and meets all the requirements described in this document, including but not limited to being fully accessible and machine readable.” Extent of Disclosure The extent of disclosure provided for a product’s ingredients must be prominently and clearly displayed. The extent of disclosure should be indicated by providing the number and title, indicated in bold in the hierarchy below, of the level achieved:
The Program Policy states that a link to the Policy should also be provided “for the public to learn more about what each level of disclosure means.” Ingredients All Information disclosed under this category should be posted in close proximity to each other. The Program Policy encourages displaying the information in some type of table, but does not require it. “Pop ups” or one-click links to a separate web page are acceptable as long as they conform with all of the requirements described in the Program Policy regarding accessibility and machine readability. A manufacturer may group ingredients separately in the following categories, so long as all ingredients are included in one list, or may intermingle the categories as appropriate: intentionally added ingredients; fragrance ingredients; nonfunctional byproducts; and nonfunctional contaminants. In all cases where an ingredient has a CAS number, it should be disclosed, unless it is being withheld as CBI. If multiple CAS numbers are associated with an ingredient, all known CAS numbers should be listed. Prior to July 1, 2020, a name from any one of the nomenclature systems listed below may be used for disclosure. After July 1, 2020, in all cases where a CAS number or chemical name is not being withheld as CBI, the name of an ingredient must be disclosed pursuant to the following hierarchy of nomenclature systems. If a name is available in the highest ranked system, that name should be used. If a name is not available in a higher ranked system, a name should be used from the next highest ranked system.
Intentionally added ingredients and nonfunctional ingredients should be listed in descending order of predominance by weight in the product, except that intentionally added ingredients or nonfunctional ingredients present at a weight below one percent may be listed following the other ingredients without respect to the order of predominance by weight. The actual weight percentages of any ingredient need not be disclosed. Presence on a List of Chemicals of Concern If an ingredient in a product is present on one or more of the lists of chemicals of concern named in Appendix B of the Program Policy, such information must be disclosed, even if the specific name or other information about the ingredient is being withheld as CBI. The Program Policy states that the fact that an ingredient appears on such a list “must be clearly and unequivocally indicated where the ingredient appears on the list of ingredients,” using one of the following approaches, terms, or phrases:
According to the Program Policy, a symbol, such as an asterisk (*), may not be used as a substitute for one of these approaches, terms, or phrases, nor can font appearance or color be used. If the manufacturer uses the abbreviation “COC,” it must provide a key with the definition of what “COC” means between the heading and the start of such ingredient list, so that the meaning of the term is apparent to a reader prior to list review. The Program Policy notes that “[n]othing here precludes a manufacturer from providing a disclaimer regarding the potential impact on human health and the environment of an ingredient which appears on a list of chemicals of concern.” The fact that an ingredient appears on the California Proposition 65 list need not be disclosed until January 1, 2023. The Program Policy states that this “in no way affects any other requirements contained in this document regarding the disclosure of ingredients.” Each list of chemicals of concern on which an ingredient appears should be listed together in a single location for each ingredient in close proximity to the ingredient as it appears on the list of ingredients provided pursuant to the Program Policy. Manufacturers should use the short name provided and highlighted in bold, and a link to the list should be provided. “Pop ups” or one-click links to a separate web page are acceptable as long as they conform with all of the requirements regarding accessibility and machine readability in the Program Policy. The Program lists the following lists of chemicals of concern:
The Program Policy states that NYSDEC reserves the right to edit, add, or subtract items from these lists. NYSDEC will provide public notice and an opportunity to comment on any changes it makes to such lists. Manufacturers should update their disclosures against any newly added lists on the two-year anniversary of their last full biennial disclosure review. Nanoscale Materials For each ingredient that is a nanoscale material, a term describing the nanoscale material should be disclosed. For example, according to the Program Policy, if the nanoscale material is carbon, the disclosure should use the term “nanoscale” carbon. The Program Policy states that a nanoscale material “is a chemical substance that meets the 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.’” The Program Policy notes that a reportable chemical substance does not include a chemical substance that is manufactured or processed in a form where less than one percent of any particles, including aggregates, and agglomerates, measured by weight are in the size range of 1-100 nanometers. The definition referenced by the Program Policy, 40 C.F.R. Section 704.20(a), is the one promulgated by EPA for the TSCA Section 8(a) reporting rule for chemical substances manufactured or processed at the nanoscale. Role For each intentionally added ingredient, a term describing its functional purpose should be disclosed. Such terms include, but are not limited to, “surfactant,” “colorant,” “fragrance,” and “preservative.” Nonfunctional ingredients should be labeled as “nonfunctional ingredient” or may be labeled as “nonfunctional byproduct” or “nonfunctional contaminant,” as appropriate. Effects on Human Health and the Environment Under the Household Cleansing Product Information Disclosure Program, manufacturers must post information on their websites regarding the nature and extent of investigations and research performed directly by or at the direction of the manufacturer concerning the effects on human health and the environment of covered products or the chemical ingredients of such products. According to the Program Policy, the posting of such information is exempt from the requirements for machine readability and Web Content Accessibility as described in the Program Policy, but “manufacturers should strive to satisfy those requirements to the maximum extent practicable.” Such information should be provided under the phrase “Effects on Human Health and the Environment” and be posted in close proximity to all other categories of information required for a covered product. Such Information should be grouped by ingredient where applicable, and must include, but is not limited to:
Date of Disclosure The most recent date on which information was posted or updated should be provided. Effective Date and Updates Manufacturers must post all required information for the following ingredients by July 1, 2019, provided, however, that manufacturers that are independently owned and operated and employ 100 or less people are not required to post such information until July 1, 2020:
Manufacturers must post all required information for the following ingredients by July 1, 2020:
Manufacturers must post all required information for the following ingredients by January 1, 2023:
All other required information should be posted by July 1, 2019, with the following exceptions:
According to the Program Policy, manufacturers should update their disclosures each time they change the ingredients in a product, introduce a new product to the market, or a list of chemicals of concern is changed to include an ingredient present in any of their products. Disclosure updates related to a change in a list of chemicals of concern should be made no later than six months after the adoption of the revised list by its authoritative body. Legacy data for discontinued products should be posted for two years after the product is discontinued. All other disclosed information, including information regarding investigations and research concerning effects on human health and the environment, should be reviewed, at a minimum, once every two years, and disclosures updated as necessary. The Disclosure Certification Form must be submitted to NYSDEC online, in machine-readable format, upon the effective dates of the Program Policy and every two years thereafter. It must include a complete list of all the manufacturers’ current (and applicable discontinued) products covered by this disclosure. In addition, an updated Disclosure Certification Form must be submitted online in machine-readable format to NYSDEC within two months of a new product entering the market, or a URL change for a current disclosure. In these instances, the Form may be an update and only needs to include information on the new product or revised URL. COMMENTARY The New York Cleansing Products Disclosure Program is a big deal for several reasons. First, the compliance dates are not far off, unlike the California program. Second, the scope of the Program may be just the beginning of many more product lines to be subject to disclosure. Third, the Program is quite robust and compels a level of specificity and assessment that may make those subject to it displeased. The requirements specific to nanomaterials in particular are likely to cause heartburn. Finally, that these “ingredient disclosure” programs are beginning to populate the commercial landscape is likely to be cause for concern by product manufacturers. In general, these programs seek to achieve a key goal -- ingredient disclosure, but they do so in ways that are considerably different on a state-by-state basis. The New York Program and the California law are actually quite different, aside from the lists of chemicals of concern, and there is every reason to expect other states will enact similar (but different) laws in the years ahead. Aligning these programs could well become a commercial nightmare. The use of state, federal, and international lists of chemicals of concern increases the significance of being added to one of these lists, and product manufacturers should be aware of the implications of being added to these lists. Whether consumers will be the beneficiaries of what promises to be a heroic effort and relentless disclosure is unclear. |
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