California to Require More Comprehensive Labelling of Cleaning Products Beginning in 2021

California recently enacted legislation that will require manufacturers of a range of cleaning products to comply no later than 1 January 2021 (no later than 1 January 2020 for on-line disclosures) with the most stringent chemical disclosure requirements ever adopted in the United States. Experts believe that if the new law is not overturned by a state-wide ballot proposition or successfully challenged in court, it could become the de facto standard across the United States, as manufacturers would likely find it more practical and cost-effective in the long-run to develop a California-compliant label that is then used in cleaning products sold nationwide.

Enacted into law on 15 October, the Cleaning Product Right to Know Act (SB 258) will require manufacturers of designated cleaning products that are sold state-wide to disclose on the product label, as well as on the product’s Internet website, information related to chemicals contained in the product. The term “designated product” means 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.

Specifically excluded from this definition are (i) foods, drugs and cosmetics, including personal care items such as toothpaste, shampoo and hand soap; (ii) industrial products specifically 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, and other industrial manufacturing processes; and (iii) a trial sample of a designated product that is not packaged for individual sale, resale or retail and includes a statement indicating that the product is not for sale or resale.

Effective 1 January 2021, subject cleaning products will have to bear the following disclosures on their label in accordance with one of the following two options.

Option A

• A list of each intentionally added ingredient contained in the product that is included on a designated list.

• A list of each fragrance allergen included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labelled by the EU Detergents Regulation No. 648/2004 on 1 January 2018, when present in the product at a concentration at or above 0.01 percent (100 ppm). The manufacturer must determine the total concentration of each fragrance allergen by adding contributions of the fragrance allergen from all fragrance ingredients and other ingredients in the designated product, including its presence in essential oils.

• An intentionally added ingredient that is known to the State of California to cause cancer or reproductive toxicity and is included on a designated list pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 will not be required to be listed on the designated product label until 1 January 2023.

Option B

• A list of all intentionally added ingredients contained in the designated product, unless it is confidential business information.

• A statement that reads “Contains fragrance allergen(s)” must be included on the product label when a fragrance allergen included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labelled by the EU Detergents Regulation No. 648/2004, or subsequent updates to those regulations, is present in the product at a concentration at or above 0.01 percent (100 ppm). The manufacturer must determine the total concentration of each fragrance allergen by adding contributions of the fragrance allergen from all fragrance ingredients and other ingredients in the designated product, including its presence in essential oils.

• Fragrance ingredients or colourants may be listed on the product label as “fragrances” or “colorants,” respectively.

• An intentionally added ingredient that is known to the State of California to cause cancer or reproductive toxicity and is included on a designated list pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 will not be required to be listed on the designated product label until 1 January 2023.

Manufacturers of designated cleaning products will also be required to disclose a toll-free telephone number and an Internet website on the product label. If the label does not include a full list of intentionally added ingredients, it must contain a statement that reads “For more ingredient information visit” as well as an Internet address that provides all required information. Manufacturers may use electronic and digital link technologies, in addition to the disclosures required to be printed on a product label, to communicate the required information to consumers.

Manufacturers of designated cleaning products must also post on their Internet website no later than 1 January 2020 the following information related to the product.

• A list of each intentionally added ingredient contained in the product, except for intentionally added ingredients that are confidential business information (an ingredient that is known to the State of California to cause cancer or reproductive toxicity pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 will not be required to be listed until 1 January 2023). These ingredients must be listed in descending order of predominance by weight, except that ingredients present at a weight below one percent may be listed following the other ingredients without regard to their order of predominance by weight.

• A list of all non-functional constituents present in the designated product at a concentration at or above 0.01 percent (100 ppm). A non-functional constituent that is known to the State of California to cause cancer or reproductive toxicity pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 and triggers a product warning pursuant to that act must be included on the list of non-functional constituents.

• 1, 4 dioxane must be listed if it is present in the finished designated product at a concentration at or above 0.001 percent (10 ppm).

• The Chemical Abstracts Service (CAS) number for any intentionally added ingredient or non-functional constituent must be listed with the name of the intentionally added ingredient or non-functional constituent. If a CAS number is not available or if the intentionally added ingredient is confidential business information, the phrase “not available” or “withheld,” respectively, must be used in place of the CAS number.

• The functional purpose served by each intentionally added ingredient must also be disclosed. For fragrance ingredients or colourants, the manufacturer may list the function as a “fragrance ingredient” or “colorant.”

• Electronic links for designated lists must be grouped together in a single location for any intentionally added ingredient or non-functional constituent that is included on a designated list and any fragrance allergen included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labelled by the EU Detergents Regulation No. 648/2004, or subsequent updates to those regulations.

• A link to the hazard communication safety data sheet for the designated product must be provided as well.

In addition to the information outlined above, the manufacturer must post on its Internet website a list of all fragrance ingredients that are included on a designated list, as well as a list of all fragrance allergens included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labelled by the EU Detergents Regulation No. 648/2004, or subsequent updates to those regulations, when present in the product at a concentration at or above 0.01 percent (100 ppm). The manufacturer must determine the total concentration of each fragrance allergen by adding contributions of the fragrance allergen from all fragrance ingredients and other ingredients in the designated product, including its presence in essential oils. A fragrance ingredient that is known to the State of California to cause cancer or reproductive toxicity and is included on a designated list pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 will not be required to be listed until 1 January 2023. Moreover, certain additional fragrance ingredients would need to be disclosed if present at a concentration at or above 0.01 percent (100 ppm), unless they are considered confidential business information.