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March 30, 2019 Practice Points

Prop 65 Heads East?

New York state is proposing changing their regulation of consumer and personal care products to be more like California’s.

By Paul V. Majkowski

New York state’s Executive Budget for Fiscal Year 2020 proposes the adoption of the “Consumer Chemical Awareness Act,” which would implement a Prop 65-type scheme regulating consumer and personal care products by amendments to the Environmental Conservation Law (adding a new Title 9, Consumer Product Disclosure) and the Public Health Law (adding a new Article 48-A, Regulation of Personal Care Products). See FY 2020 New York State Executive Budget; Transportation, Economic Development and Environmental Conservation; Article VII Legislation; Part K.

The stated intent of the legislation is “to give consumers real time access to product ingredient information so consumers can make informed decisions about which products to buy and use.” The act declares that “consumers should have the right to know if a product contains a carcinogen, mutagen or endocrine disruptors and other chemicals of concern,” and “the state, as trustee of its natural resources should have the means to identify substances which may be discharged to the environment.”

Regarding personal care products, the legislation is premised on findings that:

There are tens of thousands of chemicals used commercially in the United States, and each year approximately 1,000 chemicals are added for commercial use. The majority of chemicals in commercial use in the United States, including those used as ingredients in personal care products have never been fully tested for potential impacts on human health or the environment.

Some chemicals used in personal care products have been identified through scientific studies as being potential carcinogens, reproductive or developmental toxicants, or endocrine disruptors. Some have also been found through biomonitoring studies to be present in human blood, breast milk, or urine. These findings have led national and international agencies to develop lists of chemicals of concern based on the chemicals’ potential to impact human health, and their presence in products that consumers use everyday [sic].

Concluding that existing federal regulation of personal care products is insufficient, the legislation declares New York State policy “to require the personal care product industry to more fully disclose the ingredients they use and, where applicable, identify ingredients that have been published as a chemical of concern on one or more lists identified by the commissioner.” Manufacturers will thus be encouraged “to remove potentially harmful chemicals from their products, and encourage development of innovative methods including green chemistry to replace these ingredients with more environmentally-preferable alternatives.”

Without parsing out the entire legislative proposal, I would identify the following as important takeaways and starting points for future consideration at the legislative, rule-making, and compliance and litigation stages.

  • General Scope. The legislation provides a broad net for chemicals that would fall under the ambit of the new regulations, i.e., “any carcinogen, mutagen, endocrine disruptor or other chemical of concern.” The precise standards for determining whether a chemical constitutes any of these are unclear.
  • Source(s) for Characterizing Chemicals. The reference to “national and international agencies” having developed “lists of chemicals of concern” would seem to suggest that if at least one agency somewhere lists a chemical as being a hazard for one of these health effects, the applicable New York labeling and/or disclosure requirements could be triggered. This presents the scenario that has played out in the glyphosate dispute, where the International Agency for Research on Cancer found a cancer hazard (the agency does not consider dose, so it does not evaluate risk), while numerous regulatory agencies—such as the United States Environmental Protection Agency, Canadian Pest Management Regulatory Agency, and European Food Safety Agency—did not assess glyphosate as a cancer risk. Furthermore, to the extent that hazards, as opposed to risks, become the basis for labeling and disclosure regulation, we would see an enhanced reliance on precautionary principle standards—which, in turn, could encroach on traditional standards of legal causation in the litigation context.
  • Disclosure of Research and Investigation. The required disclosures include “the nature and extent of investigations and research performed by the manufacturer concerning the effects on human health and the environment.” Such disclosure poses a burden at the disclosure stage, including disputes arising over exceptions for trade secrets, and could produce fodder and a minefield (depending on your perspective) for later tort litigation. 
  • Distinctions Between Consumer Products and Personal Care Products. The regulatory responsibilities are divided. “Consumer products,” including cleansing products, children’s products and other products that “could, through normal use, expose the user to any carcinogen, mutagen, endocrine disruptor or other chemicals of concern,” are under the jurisdiction of the Department of Environmental Conversation. “Personal care products” are under the jurisdiction of the Department of Health. Whether this would result in some inconsistent positions is unclear.

    Although the precise labeling requirements for consumer products are left to be promulgated by the Department of Environmental Conservation, the proposed Personal Care Products statute already would require manufacturers to disclose and post on their websites at least: (i) a list of ingredients, (ii) information regarding research and investigation, and (iii) “where applicable, a statement disclosing that an ingredient is published as a chemical of concern on one or more lists identified by the commissioner.”
  • Bounty Hunter. Unlike Prop 65, the New York bill presently does not contain a “bounty hunter” provision, only departmental enforcement and civil penalties. Nevertheless, these enhanced labeling and disclosure requirements would seem rife with fodder for consumer litigation, including via class action.

As with any new legislation, and subsequent rule-making, there is considerable uncertainty at this juncture, but, it is clear that this proposal casts a wide (and burdensome) net, as the Prop 65 experience foretells.

Paul V. Majkowski is a partner at Rivkin Radler LLP in New York, New York.

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