Audit, Compliance and Risk Blog

California’s New Cleaning Products Right to Know Act – A First Look

Posted by Jon Elliott on Tue, Jan 16, 2018

Cleaning products.jpgDoes your employer’s Hazard Communication program pay attention to cleaning agents used in the workplace – bleaches, disinfectants, glass cleaners, etc? If it does more than mention their existence and note that they’re probably corrosive and maybe toxic, you’re almost certainly in the minority. In most workplaces, workers who use cleaners are exposed to undisclosed or unexplained chemical hazards. And even if your organization’s employees do receive this information, does your employer contract out janitorial and other service work without ensuring that those night janitors are fully trained and protected?

Hazard Communication Standard (Hazcom) training and information programs are required in many workplaces by the U.S. Occupational Safety and Health Administration (OSHA) and delegated state agencies. But Hazcom does not apply to “consumer products where … use results in a duration and frequency of exposure which is not greater than the range of exposures that could reasonably be experienced by consumers when used for the purpose intended.“ There’s no clear standard for this. Do assembly workers spray down their benches daily? Do janitors scrub toilets for two hours each day?

Workplace safety and health groups, and labor advocates for service workers have sought legal changes to ensure that more information is provided, and in more useful ways including California's Division of Occupational Safety and Health (CalOSHA). I wrote recently about proposals in New York to strengthen that state’s longstanding rules (see here) but can’t report any progress since then. Effective January 1, 2018, however, the California Cleaning Product Right to Know Act of 2017 (SB 258, Lara) provides requirements on manufacturers to “provide consumers and workers with ingredient information about designated products that encourages informed purchasing decisions and reduces public health impacts from exposure to potentially harmful chemicals in designated products.” Requirements will phase in between 2020 and 2023. The remainder of this blog summarizes this new state law – much of the following text pulls terms and examples from the statute, which has not yet been interpreted by regulatory agencies or regulated industries.

Which Products and Ingredients are Covered?

The new law defines key terms, most of which consist of long lists of general categories and/or specific examples.

  • Designated products

Labeling and notification requirements will apply to “designated products,” which are defined as follows:

“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. “Designated product” shall not mean any of the following:

1. Foods, drugs, and cosmetics, including personal care items such as toothpaste, shampoo, and hand soap.

2. Industrial products specifically manufactured for, and exclusively used in the following:

(A) Oil and gas production.

(B) Steel production.

(C) Heavy industry manufacturing.

(D) Industrial water treatment.

(E) Industrial textile maintenance and processing other than industrial laundering.

(F) Food and beverage processing and packaging.

(G) Other industrial manufacturing processes.

 3. 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.

The law provides additional definitions of several identified product categories:

  • “Air care product” means a chemically formulated consumer product labeled to indicate that the purpose of the product is to enhance or condition the indoor environment by eliminating unpleasant odors or freshening the air.
  • “Automotive product” means a chemically formulated consumer product labeled to indicate that the purpose of the product is to maintain the appearance of a motor vehicle … including products for washing, waxing, polishing, cleaning, or treating the exterior or interior surfaces of motor vehicles. “Automotive product” does not include automotive paint or paint repair products.

  • “General cleaning product” means a soap, detergent, or other chemically formulated consumer product labeled to indicate that the purpose of the product is to clean, disinfect, or otherwise care for fabric, dishes, or other wares; surfaces including, but not limited to, floors, furniture, countertops, showers, and baths; or other hard surfaces, such as stovetops, microwaves, and other appliances.

  • “Polish or floor maintenance product” means a chemically formulated consumer product, such as polish, wax, or a restorer, labeled to indicate that the purpose of the product is to polish, protect, buff, condition, temporarily seal, or maintain furniture, floors, metal, leather, or other surfaces.

  • Intentionally added ingredients on designated lists

The Act applies to “intentionally added ingredients” that contain or consist of designated chemicals. “Intentionally added ingredient” is defined as “a chemical that a manufacturer has intentionally added to a designated product and that has a functional or technical effect in the designated product, including, but not limited to, the components of intentionally added fragrance ingredients and colorants and intentional breakdown products of an added chemical that also have a functional or technical effect in the designated product.” The law also references 22 distinct state, US federal, and international “designated lists” of chemicals that trigger labeling and notification under the law being referenced. Readers should note that some chemicals appear on more than one of these lists; as of December 2017 there is no combined compilation of designated chemicals. “Designated list” means any of the following, including subsequent revisions when adopted by the authoritative body:

  1. Chemicals known to the State of California to cause cancer or reproductive toxicity that are listed pursuant to Proposition 65.

  2. Chemicals classified by the European Union as carcinogens, mutagens, or reproductive toxicants pursuant to Category 1A or 1B in Annex VI to Regulation (EC) 1272/2008.

  3. Chemicals included in the European Union Candidate List of Substances of Very High Concern in accordance with Article 59 of Regulation (EC) 1907/2006 on the basis of Article 57(f) for endocrine disrupting properties.

  4. Chemicals for which a reference dose or reference concentration has been developed based on neurotoxicity in the Environmental Protection Agency’s (EPA’s) Integrated Risk Information System (IRIS).

  5. Chemicals that are identified as carcinogenic to humans, likely to be carcinogenic to humans, or as Group A, B1, or B2 carcinogens in EPA’s IRIS.

  6. Chemicals included in the European Chemicals Agency Candidate List of Substances of Very High Concern in accordance with Article 59 of Regulation (EC) 1907/2006 on the basis of Article 57(d), Article 57(e), or Article 57(f) of Regulation (EC) 1907/2006 for persistent, bioaccumulative and toxic, or very persistent and very bioaccumulative properties.

  7. Chemicals that are identified as persistent, bioaccumulative, and inherently toxic to the environment by the Canadian Environmental Protection Act Environmental Registry Domestic Substances List.

  8. Chemicals classified by the European Union in Annex VI to Regulation (EC) 1272/2008 as respiratory sensitizer category 1.

  9. Group 1, 2A, or 2B carcinogens identified by the International Agency for Research on Cancer.

  10. Neurotoxicants that are identified in the federal Agency for Toxic Substances and Disease Registry’s Toxic Substances Portal, Health Effects of Toxic Substances and Carcinogens, Nervous System.

  11. Persistent bioaccumulative and toxic priority chemicals identified by EPA’s National Waste Minimization Program.

  12. Reproductive or developmental toxicants identified in Monographs on the Potential Human Reproductive and Developmental Effects published by the federal National Toxicology Program (NTP), Office of Health Assessment and Translation.

  13. Chemicals identified by EPA’s Toxics Release Inventory (TRI) as Persistent, Bioaccumulative and Toxic (PBT) Chemicals subject to reporting under Section 313.

  14. Washington Department of Ecology’s list of PBT Chemicals.

  15. Chemicals that are identified as known to be, or reasonably anticipated to be, human carcinogens by the 13th Report on Carcinogens prepared by the federal National Toxicology Program. Subsequent revisions to this list shall not be incorporated.

  16. Chemicals for which California Department of Public Health (DPH) or State Water Resources Control Board (SWRCB) have defined notification levels under the state Safe Drinking Water Act (SDWA).

  17. Chemicals for which primary maximum contaminant levels (MCLs) have been established and adopted under the state SDWA.

  18. Chemicals identified as toxic air contaminants under state law.

  19. Chemicals that are identified as priority pollutants under the Clean Water Act.

  20. Chemicals that are identified with noncancer endpoints and listed with an inhalation or oral reference exposure level by the state.

  21. Chemicals identified as priority chemicals by the California Environmental Contaminant Biomonitoring Program.

  22. Chemicals that are identified on Part A of the list of Chemicals for Priority Action prepared by the Oslo and Paris Conventions for the Protection of the Marine Environment of the North-East Atlantic (“OSPAR Convention”).

Disclosure requirements also apply to “fragrance allergens”, which consist of “fragrance ingredients.” A fragrance allergen is a chemical “included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labeled by the EU Detergents Regulation No. 648/2004 on January 1, 2018, when present in the product at a concentration at or above 0.01 percent (100 ppm).”

How Do Manufacturers Comply?

Manufacturers of products subject to the new California Act must meet product labeling requirements as well as requirements for posting of information on the manufacturer’s Internet website:

  • Labeling requirements

A manufacturer of a designated product sold in California must make one of the following disclosures on the product label, as of January 1, 2021 (except as shown):

  • For products that are not designated products, a list that includes the following:

    o Each intentionally added ingredient that is included on a designated list (Proposition 65 chemicals need not be listed until January 1, 2023); and

    o Each fragrance allergen present at a concentration at or above 0.01 percent (100 ppm). (totaling the contribution from all ingredients).

  • For designated products

    • A list that includes all intentionally added ingredients (unless confidential business information; Proposition 65 chemicals need not be listed until January 1, 2023), or the statement “For more ingredient information visit [web address] and [toll free number]..

    • A statement that reads “Contains fragrance allergen(s)” if any are present at a concentration at or above 0.01 percent (100 ppm).

    • The manufacturer’s toll-free telephone number and Internet Web site address.

This labeling requirement does not apply to any state-defined pesticide.

The manufacturer may meet these labeling requirements earlier than January 1, 2021. A manufacturer may also use “technologies, such as electronic or digital link, in addition to the disclosures required to be printed on a designated product label, to communicate” required information.

  • Internet posting requirements

A manufacturer of a designated product must post the following information about designated products on its Internet website beginning by January 1, 2020 (Proposition 65 chemicals need not be listed until January 1, 2023), in an electronically readable format:

  1. A list of each intentionally added ingredient contained in the product, except for fragrance ingredients (subject to requirements below). The list must include the name and Chemical Abstracts Service (CAS) number (or statement if CAS number is “not available” or “withheld”). The list must identify intentionally added ingredients present in 1% or more in descending order of predominance by weight in the product; ingredients less than 1% may be listed following the other ingredients without being in order by weight.

  2. A list of all specified “nonfunctional constituents” present in the designated product at a concentration at or above 0.01 % (the legislation lists 34 specific chemicals). In addition, the list must include each nonfunctional constituent listed under Proposition 65 that triggers a product warning pursuant to that Act, and must include 1, 4 dioxane if present in the finished designated product at a concentration at or above 0.01 %.

  3. The functional purpose served by each intentionally added ingredient listed (including if a “fragrance ingredient” or “colorant”).

  4. Electronic links for designated lists must be grouped together in a single location for any intentionally added ingredient or nonfunctional 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 labeled by the EU Detergents Regulation No. 648/2004 (or subsequent updates).

  5. A link to the Hazcom safety data sheet (SDS) for the designated product.

In addition, the manufacturer must post on its website beginning by January 1, 2020 (Proposition 65 chemicals need not be listed until January 1, 2023) the following information about fragrance ingredients and allergens contained in a designated product:

  1. A list of all fragrance ingredients that are included on a designated list.

  2. A list of all fragrance allergens included on Annex III of the EU Cosmetics Regulation No. 1223/2009 as required to be labeled 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), calculated by adding contributions of the fragrance allergen from all fragrance ingredients and other ingredients in the designated product, including essential oils.

  3. A list of all fragrance ingredients, other than those described in the preceding items, that are present in the designated product at a concentration at or above 0.01 percent (100 ppm), unless it is confidential business information.

A designated product manufactured prior to the applicable online posting deadline is deemed to be in compliance with this requirement if displays either the date it was manufactured or a code indicating the date. If changes in a trait list or in Annex III of the EU Cosmetics Regulation trigger a requirement to revise posted information, the manufacturer must do so within 6 months (or a later date set by Proposition 65).

How Do California Employers Comply?

California employers who are subject to the state’s version of Hazcom requirements must add printable information prepared under this law to the safety data sheet (SDS) information made available to employees.

What Should Other Employers Do?

Assuming this state law is not found to be preempted by federal labeling requirements, manufacturers’ compliance will yield additional information about the potential hazards of cleaning products to the employees who use them. Non-California employers should watch the development and implementation of this new law, and be ready to incorporate addition information into their own Hazcom programs.

Self-Assessment Checklist

Does the organization manufacture or import cleaning products designated by this new California act?

  • If so, has the organization prepared safety data sheets compliant with OSHA Hazcom requirements, which also provide the information called for by this new act?

  • If so, does the organization make information (such as the SDSs) available for public access (e.g., on Internet website)?

  • If not, is the organization preparing to do so in compliance with this act?

Does the organization purchase and use cleansing products in its workplaces?

  • If so, has it secured hazard and safety information comparable to that called for in this act for presentation in information provided to employees?

Where Can I Go For More Information?

● California SB 258 “Cleaning Product Right to Know Act of 2017” (California Legislature website) 

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

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About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com

photo credit: marcoverch Reinigungsmittel und Mikrofasertücher via photopin (license)

Tags: Hazcom, Environmental, Environmental risks, Employee Rights, Employer Best Practices, Business & Legal