Environmental Law: How Clean is that Cleaning Product?
As if California’s Safe Drinking Water and Toxic Enforcement Act (“Prop 65”) doesn’t impose enough regulations on employers, landlords, retailers, manufacturers and distributors – we now must also contend with the Cleaning Product Right to Know Act of 2017 (the “Act”) – one more law that provides transparency as to product ingredients to consumers.
Last October, Governor Jerry Brown signed Senate Bill 258 written by Senator Ricardo Lara – a law that requires ingredient labels on cleaning products and ingredient lists on cleaning product websites. The bill added a new section to Part 3 of Division 104 of the California Health and Safety Code.
Senator Lara says the bill was prompted by his mother’s work in the domestic field – she would come home feeling ill, never knowing what caused her symptoms.
How the Cleaning Product Right to Know Act Differs from Prop 65
Unlike Proposition 65, the Cleaning Product Right to Know Act does not just mandate warnings regarding ingredients that may cause cancer or reproductive harm. Products that, for example, also cause allergic reactions are included within the ambit of disclosures required by the Act.
Another difference between the Cleaning Product Right to Know Act and Prop 65 is the notification responsibility. Under this new Act, it’s up to the manufacturer of the product in question to warn the public, via online information and on product packaging. Prop 65 assigns that responsibility to anyone who sells, provides, or stores products containing certain chemicals and substances to warn consumers.
Moreover, whereas Prop 65 covers any product containing listed carcinogens or reproductive toxicants unless the regulated entity can show exposure to the product poses no harm, this Act exempts 22 categories of products from regulation under the Act (though warning requirements concerning these products may be imposed under other laws). The Act does not apply to food or drugs; cosmetics or personal care products; steel or oil and gas production; heavy industry manufacturers; industrial water treatment operations; and some others in these industries, related industries, or similar industries.
Even if a company is not regulated by the Act, the company may be required to maintain safety data sheets providing employees information regarding hazardous chemical to which the employees may be exposed.
When does all of this go in effect?
Manufacturers must provide chemical information for their products online as of January 1, 2020, and on product packaging labels as of January 1, 2021. To protect trade secrets, amounts or weights need not be provided. Curiously, if a product contains ingredients mandated by Proposition 65 to require warnings, warnings under the Act need not be given until January 1, 2023. This extra time is likely insignificant as a practical matter, since even before 2023 warnings still must be given under Prop 65 itself.
Stephen T. Holzer is an Environmental and Business Litigation Attorney.