California has enacted Senate Bill 258, the “Cleaning Products Right to Know Act of 2017.” SB 258 requires cleaning product manufacturers to disclose the ingredients of their products to consumers. The bill is a victory for disclosure advocates after many failed attempts at a California “right-to-know.” The first disclosure requirements take effect for products manufactured on and after January 1, 2020.

Disclosure Requirements

SB 258 requires ingredient disclosure in two ways – online disclosures and product labeling. Manufacturers must comply with both requirements, although the compliance dates are phased in.

Online disclosures

Manufacturers of cleaning products sold in California must post the following information on their websites for each product:

• A list of “intentionally added” ingredients in the product;
• A list of all “nonfunctional constituents” present in the designated product at a concentration at or above 0.01 percent (100 parts per million);
• The Chemical Abstracts Service (CAS) chemical identification number for all listed chemicals;
• The functional purpose served by each intentionally added ingredient;
• Hyperlinks to government information websites for chemicals, such as the Office of Environmental Health Hazard Assessment Proposition 65 consumer information website; and
• A hyperlink to the Safety Data Sheet (SDS) for each product.

An “intentionally added” ingredient is a chemical that a manufacturer has added to a designated product that has a functional or technical effect. “Nonfunctional constituents” are “incidental component[s] of an intentionally added ingredient, a breakdown product of an intentionally added ingredient, or a byproduct of the manufacturing process that has no functional or technical effect on the designated product.”

This requirement applies to designated products sold in California on or after January 1, 2020, unless they are manufactured prior to that date and are marked with the manufacture date (date codes are permissible). In addition, designated chemicals appearing on the California Proposition 65 list do not need to be listed on the website until January 1, 2023.

Product labeling

Manufacturers of cleaning products sold in California must also include on the label for each product:

• A list of “intentionally added” ingredients in the product that are currently listed on any of a number of well-known lists of designated toxins, carcinogens, chemicals of high concern, etc.; and
• The manufacturer’s toll-free telephone number and internet web site address.

The Act specifically identifies 23 chemical lists, including:

• California Proposition 65;
• Washington Department of Ecology’s PBT chemicals;
• Chemicals included in the EU Candidate List of Substances of Very High Concern (SVHC); and
• Carcinogens identified by the International Agency for Research on Cancer (IARC).

The labeling requirement does not apply to contaminants, in contrast to the online disclosure requirement.

If a manufacturer cannot list all of the required information on the label, it must provide a statement directing consumers to a web address or toll free number for complete ingredient information. Manufacturers may also provide information via developing consumer information technology, such as QR codes or other electronic links.

Who must comply?

SB 258 applies to “manufacturers” of “designated products.”

A “manufacturer” is a “person or entity who manufactures the designated product and whose name appears on the product label” or a “person or entity who the product is manufactured for or distributed by, as identified on the product label under to the federal Fair Packaging and Labeling Act.”

A “designated product” is a “finished product that is an air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic, or institutional cleaning purposes.”

Exemptions

SB 258 does not apply to:

• Foods, drugs, and cosmetics, including personal care items such as toothpaste, shampoo, and hand soap;
• Industrial products 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.
  • Other industrial manufacturing processes.

Exceptions for “Confidential Business Information”

The Act provides some slight exceptions for “confidential business information,” but does not permit CBI claims to cover a chemical ingredient appearing on any of the designated lists of chemicals identified as causing harm to human health or the environment and certain fragrance allergens. Beyond those designated list chemicals, an ingredient may be protected as CBI if it is “a claim [that] has been approved by the United States Environmental Protection Agency (US EPA) for inclusion on the Toxic Substances Control Act (TSCA) Confidential Inventory, or for which the manufacturer or its suppliers claim protection under the Uniform Trade Secrets Act.” The CBI provisions are complex and should be consulted in detail when assessing compliance approaches to the Act.

Requirements for Employers

SB 258 also adds a requirement for employers to make the ingredient information listed on a manufacturer’s website available to employees in the workplace if the employer is already required to make safety data sheets/SDS readily accessible employees.

Enforcement

SB 258 does included a specific enforcement provision, and more general enforcement provisions in the Health and Safety Code appear to be inapplicable. At a minimum, we could see the Attorney General or district or city attorneys enforcing violations under California’s Unfair Competition Law, but we will be on the lookout for more guidance from the state on enforcement.