New York Ramping Up Oversight of Chemical Substances in Consumer Products
The Department of Environmental Conservation (“DEC”) has promulgated regulations for the Household Cleansing Products Disclosure Program (“Program”), which requires manufacturers of cleansing products to disclose, on their websites, the ingredients of their products sold and any research and investigations on the ingredients’ effects on human health and the environment. New York State regulations will be effective starting October 2, 2019.
New York State legislators are also currently considering the Child Safe Products Act (“Act”), which would require manufacturers of children’s products that contain a “dangerous chemical” (“DC”) or “chemical of concern” (“CoC”) to disclose such products and the chemicals they contain to DEC, based on a list of DCs and CoCs promulgated by DEC. If signed into law as drafted, the Act would become effective as of March 1, 2020. While these initiatives have the intended purpose of increasing consumer awareness, the regulations may impose significant costs on those doing business in New York State.
DEC Household Cleansing Products Disclosure Program
DEC is implementing the Program to provide consumers the opportunity to make informed choices about the products that they use and are exposed to. The Program requires manufacturers of cleansing products to disclose ingredients, each ingredient’s content by weight, and the nature and extent of research and investigations on each ingredient’s effect on human health and the environment. The Program is being implemented pursuant to Environmental Conservation Law (“ECL”) § 35-0107 and New York Codes, Rules and Regulations (“NYCRR”) Title 6 Part 659.6. In the case of importation, the manufacturer is the importer or first domestic distributor of the product if the entity from which the product is being imported does not have a presence in the United States. The products subject to the Program include “soaps and detergents containing a surfactant as a wetting or dirt emulsifying agent and used primarily for domestic or commercial cleaning purposes,” such as products for the “cleansing of fabrics, dishes, food utensils, and household and commercial premises.” The Program does not cover personal care items, cosmetics, foods, drugs or cleansing products used in industrial manufacturing.
Manufacturers subject to the Program must disclose on their website the name of the manufacturer of the final product, as well as the final domestic distributor if these are two different entities. Manufacturers must also provide the product name as it appears on the label and a product description. Under the Program, manufacturers must have a staff person available to assist consumers interested in obtaining ingredient information and must provide the contact information of such person on their website.
Subject to Confidential Business Information (“CBI”) limitations, the chemical name and Chemical Abstracts Service (“CAS”) Registry Number of each ingredient must be disclosed by order of its weight in the product, and the disclosure must state whether an ingredient is included on a list of CoCs in Appendix B of the DEC’s Program Policy document (“DMM-2”). The scope of ingredient disclosure mandated by the Program is expansive, requiring disclosure of all intentionally added ingredients, nonfunctional ingredients such as byproducts or contaminants, and any fragrance ingredients. However, if applicable, any category of ingredient may qualify for CBI, making it exempt from disclosure as a trade secret or confidential commercial information. For each intentionally added ingredient disclosed, the manufacturer must label the role or functional purpose of the ingredient.
In addition to comprehensive information disclosure of each product’s ingredients, manufacturers must post to their website any information “regarding the nature and extent of investigations and research” concerning the “effects on human health and the environment” for the products covered under the Program and the chemical ingredients of such products. This includes health and safety studies performed pursuant to the Toxic Substances Control Act (“TSCA”) and any investigations or research performed pursuant to the European Union’s Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH”). Any research or investigations performed that were not pursuant to TSCA or REACH should be disclosed on the manufacturer’s website as a list that describes the number
and types of studies on a particular product or ingredient, the entities that conducted and financed the study, and the years of commencement and completion of each study.
The Program mandates that all required information be disclosed on the manufacturer’s main website or a separate website that can be reached via a direct link from the website’s home page. The information must be provided in English and in a manner that is “obvious, noticeable and readily accessible.” Manufacturers must also submit the Cleansing Product Information Disclosure Certification Form that was released with the Program.
Regulation of Toxic Chemicals in Children’s Products
More recently, “an act to amend the environmental conservation law, in relation to regulation of toxic chemicals in children’s products” has passed in both the New York State Senate and Assembly, and is awaiting action by Governor Cuomo. The proposed Act is aimed at limiting children’s exposure to potential DCs, and would require DEC to post a list of identified DCs and CoCs on their website. In addition, manufacturers of children’s products containing one or more of those chemicals must notify sellers and distributors of those children’s products of the presence and toxicity levels of such chemicals. For imported products, the “manufacturer” is the importer or first domestic distributor of the product if the entity from which the product is being imported does not have a presence in the United States. The Act would also require DEC to notify consumers about any children’s products that contain DCs or CoCs. The Act would prohibit the sale of all children’s products that contain specific DCs or CoCs, including flame retardants, trisphosphate and asbestos, by January 1, 2023.
Of major concern is the sweeping scope of the term “children’s product.” Per the Act, such products are:
“primarily intended for, made for or marketed for use by children, such as baby products, toys, car seats, school supplies, personal care products, a product designed or intended by the manufacturer to help a child with sucking or teething, to facilitate sleep, relaxation, or the feeding of a child, and children’s novelty products, children’s jewelry, children’s bedding, furniture, furnishings, and apparel.”
Under the Act’s definitions, a child is any person age 12 and under. Not included within the scope of the term “children’s product” are batteries, consumer electronic products such as cell phones or game consoles, food or beverages, drugs or medical devices. Retailers are generally exempt from the Act’s requirements unless a retailer knowingly sells a product containing a DC or CoC after the effective prohibition date, or if the retailer is also the importer or first domestic distributor.
Per the Act, DEC would be required to post lists of DCs and CoCs on its website, which will be subject to periodic review and revision by DEC in collaboration with the Department of Health. No later than 12 months after publication of DEC’s lists, manufacturers of children’s products would be required to report to DEC the products that contain any chemicals on such lists, the specific chemical the product contains and the intended purpose of such chemical. Upon such disclosure, DEC could request from the manufacturer more information on the subject children’s product and chemical. Upon identification of the children’s products containing DCs or CoCs by manufacturers, DEC would also publish on its website those identified products in order to inform consumers. Manufacturers would be required to pay a fee with each submission of a report of chemical use in order to cover DEC’s administrative and enforcement costs, including DEC’s requirement to publish chemical information on its website.
By January 1, 2023, the sale and distribution in New York State of children’s products containing trisphosphate, benzene, formaldehyde, asbestos and flame retardants would be prohibited by the Act. Additionally, after three years of a chemical being listed as a DC or CoC, children’s products containing that chemical would be prohibited from being sold or distributed in New York State. Importantly, the proposed Act would only apply to children’s products that are sold or distributed as new, not covering children’s products sold second-hand or donated.
Impact on Businesses
New York State is following in the footsteps of several other states by placing more stringent regulations on manufacturers in order to inform and monitor consumers’ exposure to “potentially dangerous” chemicals. The State’s recent regulations are comparable to California’s Proposition 65, which requires California to publish a list of chemicals known to be harmful to reproductive health or to cause cancer or birth defects. Like New York’s new regulations, those doing business in California must disclose to consumers the risk of significant exposure to these chemicals.
The potential effects on businesses that sell or distribute covered products in New York State has yet to be known. Due to the broad scope of applicability of each program and the mandates that follow, these programs are likely to impose significant compliance costs on subject businesses.
For questions regarding New York State’s latest chemical regulations for manufacturers, please contact any of the attorneys on our Environmental Practice Team or the Phillips Lytle attorney with whom you have a relationship.