With the announcement of New York’s 2020 budget, Governor Andrew Cuomo announced new “right-to-know” legislation regarding chemicals in certain products sold in the State of New York. The legislation will extend New York’s existing right-to-know laws to cover additional cleaning products and “personal care products like shampoo, deodorant or baby powder.”
While the legislation includes similarities with California’s Proposition 65 regulations, New York’s regulatory scheme will differ in several very important ways. Chief amongst the differences is that New York’s legislation does not include a private right of action to enforce the new laws. In California, private “bounty hunters” can pursue Proposition 65 violations and are often rewarded generously for doing so. In 2017, the most recent full year for which data is available, the bounty hunters in California collected approximately $25.8 million in Proposition 65 enforcement actions, and just 19 percent of that went to California in the form of civil penalties. Right or wrong, the effect of the economic incentive for private enforcement has undeniably led to a greater number of enforcement actions against companies doing business in California.
The New York legislation is an incremental step expanding existing right-to-know law to additional products. It is not hard to imagine New York expanding these laws to additional product categories in the years to come.
Governor Cuomo’s proposal expands the existing Household Cleansing Product Information Program to “cover all cleaning products sold in New York State.” True to its billing, the new legislation removes the word “household” from the former definition of “cleansing product.” If a finer point was needed, the definition of “cleansing product” was rewritten to include products used for domestic, commercial, and “industrial cleaning purposes.” The legislation comes with a fairly wide exception: any cleansing product “used primarily in industrial manufacturing, production and assembling processes as provided by the commissioner by rule and regulation” is specifically excluded from the definition of “cleansing product.”
The new law permits New York to create labeling requirements which inform consumers of ingredients that are carcinogens, mutagens, endocrine disrupters “or other chemicals of concern identified by the department.” The new statute has a savings clause to protect against invalidation through federal preemption by including “except where prohibited by federal law.”
Manufacturers are to complete a form that discloses the “nature and extent of investigations and research performed by the manufacturer concerning the effects of such products on human health and the environment.” These reports are public except any portions the manufacturer deems to be protected trade secrets, subject to the approval of the commissioner.
Violations include a civil penalty of up to $2,500 for each violation and an additional penalty of not more than $500 for each day during which such violation continues.
Personal Care Products
Although federal law carries certain labeling requirements for personal care products, “information concerning the potential health effects of exposure to these chemical ingredients is not widely available.” Under Governor Cuomo’s legislation, manufacturers of personal care products must make public disclosure to a state commissioner, and also must post on the manufacturers’ website information regarding each of their product’s ingredients that are intentionally added or, subject to certain thresholds, that are nonfunctional byproducts or nonfunctional contaminants in the product. Most of the provisions in this new legislation will not take effect until April 1, 2021, but the disclosure of information regarding personal care products is set for July 1, 2020.
There are instances where a manufacturer can apply to have this information withheld from the public where it “is related to a proprietary process the disclosure of which would compromise the manufacturer’s competitive position,” but the application is to be denied “with respect to any ingredient published as a chemical of concern on one or more lists identified by the commissioner.”
For first offenses for personal care products, manufacturers are subject to civil penalties of up to $5,000 “for each violation.” Repeat violators are subject to penalties of up to $10,000 “for each repeat offense.”
CMBG3 Law has represented clients in products liability matters, especially with respect to warning label issues, for many years. Our attorneys in California are well-versed on Prop 65 issues and requirements, and we have attorneys licensed in New York, as well. If you are involved in putting a product to market in California or New York, we recommend seeking legal advice to address your individual situation as the information at this site is not, nor is it intended to be, legal advice. While we invite you to contact us, and welcome you to do so, contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until an attorney-client relationship has been established. If you have any questions or would like more information, please contact Gilliam Stewart (email him or 415-957-2322) or John Gardella (email him or 617-279-8225).