California Cleaning Product Right to Know Act: Are Your Product Labels Ready for 2021?

As a summer unlike any we have ever seen winds down and companies shift their attention towards the end of 2020, ensuring compliance with the California Cleaning Product Right to Know Act (the Act) should be an important action item for any manufacturer that sells or distributes cleaning products. Barring any extension from the state, those who do so in California have just four months to comply with the Act's on-label ingredient disclosure requirements that go into effect on January 1, 2021. Companies should also keep a close eye on similar ingredient disclosure programs that are under consideration in New York and New Jersey.

California's Act imposes online and on-label ingredient disclosure requirements for a wide variety of cleaning products—including, among others, "a soap, detergent, or other chemically formulated consumer product labeled to indicate 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." While the Act's online ingredient disclosure requirements have been in effect since the beginning of 2020, manufacturers have until January 1, 2021 to begin making the necessary on-label ingredient disclosures.

Under the Act, manufacturers may be required to update the product labels of their cleaning products to disclose the presence of intentionally-added ingredients and fragrances. Any manufacturer that fails to do so for cleaning products manufactured on or after January 1, 2021 risks prosecution by the California Attorney General, county district attorneys, or city attorneys or prosecutors under California's Unfair Competition Law (UCL), which provides for monetary penalties of up to $2,500 per violation. Private enforcers could also assert claims for violation of the Act and seek injunctive relief and restitution under the UCL, as well as attorneys' fees under California's private attorney general statute.

In addition to California, New York and New Jersey also are in the process of enacting their own unique ingredient disclosure requirements. In New York, the New York Department of Environmental Conservation (NYDEC) is continuing to undertake a formal rulemaking process to implement a Household Cleansing Information Disclosure Program (the Program), after a trial court invalidated the Program in August 2019 on the ground that NYDEC failed to comply with the State Administrative Procedure Act's requirement for enacting a "rule." And in New Jersey, the New Jersey Senate passed Bill S 2098, which if enacted in its current version, would both (1) require that the wrapper or container of each household cleansing product "list the weight of each ingredient . . . which the commissioner determines may adversely affect the environment" and (2) prohibit the distribution or sale of household cleansing products containing a phosphorous compound in other than trace concentrations.

Arnold & Porter lobbied on the California Cleaning Product Right to Know Act and has advised numerous clients on the Act's ingredient disclosure requirements. In addition, we continue to closely monitor the New York Household Cleansing Product Information Disclosure Program and New Jersey Bill S 2098. If you have any questions about any of these programs or need any assistance complying with the California Act's January 1, 2021 on-product disclosure deadline, we would be delighted to help.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.