By Lynn L. Bergeson
The New York State Department of Environmental Conservation (NYSDEC) will hold a public meeting on February 24, 2020, at 1 p.m. (EST) in Albany, New York, “to discuss amendments to the household cleansing product rules that are being considered for adoption.” According to NYSDEC, amendments include specifying what information must be reported about covered products and their ingredients, how information should be shared with NYSDEC for the public record, the type of studies that must be reported, and how confidential business information (CBI) should be handled. NYSDEC states that during the meeting, it “is looking for input on disclosure of nonfunctional ingredients, issues around confidential information, how to disclose when a product’s formulation temporarily changes, and any other regulatory concerns.” Registration is required to attend the meeting. NYSDEC notes that it “will hold a formal public comment period at a later date once it officially proposes the regulations.”
As reported in Bergeson & Campbell, P.C.’s (B&C®) September 4, 2019, blog item, on August 27, 2019, the State of New York Supreme Court invalidated the Household Cleansing Product Information Disclosure Program (Disclosure Program). Information related to NYSDEC’s prior delay of its enforcement of its Disclosure Program is available here, and general information regarding the Program and its extensive requirements for manufacturers of certain consumer cleaning products to disclose information regarding the ingredients in those products is available here. The court found that the Disclosure Program was established in violation of the State Administrative Procedure Act (SAPA) and the New York State Constitution. In making this finding, the court held that the Program was a “rule” as argued by Petitioners and not “guidance” for which adherence to SAPA was not required, as argued by NYSDEC. A more detailed analysis and commentary are available in our August 30, 2019, memorandum, “NY Department of Environmental Conservation Household Cleansing Product Information Disclosure Program Ruled ‘Null and Void.’”
By Lauren M. Graham, Ph.D.
On October 24, 2017, Neste, a member of the Biobased and Renewable Products Advocacy Group (BRAG®), announced that it was the only energy company to reach the Leadership-class ranking in three Climate Disclosure Project (CDP) programs. Neste received an A- ranking in the CDP Climate, CDP Forests, and CDP Water programs. CDP is a not-for-profit organization that manages a global disclosure system allowing companies, cities, states, and regions to measure and manage their environmental impact. The CDP Climate program focuses on corporate measures to combat climate risks and take advantage of low-carbon products and services. According to Pekka Tuovinen, Neste's Senior Advisor for sustainability, “[t]he more efficiently we operate, and the more we can reduce the climate emissions of our own supply chains, the greater will be the climate benefits of the products and solutions we offer.”
Neste is the only energy sector company to transparently disclose its forest footprint as part of the CDP program. The Leadership-class ranking demonstrates Neste’s commitment to preventing deforestation in its supply chain and requiring similar action from its raw material suppliers. Neste continues to work on improving the traceability of various kinds of processing residues used as raw materials beyond what is mandated by regulatory requirements.
For the first time, Neste participated in the CDP Water program, which requires companies to disclose the measures they implement for responsible water use and water risk management. According to Mr. Tuovinen, Neste has been carrying out water footprint calculations for its refineries and products since the 1990s.
By Lynn L. Bergeson and Margaret R. Graham
On October 15, 2017, California Governor Jerry Brown signed California Senate Bill (S.B.) 258, the Cleaning Product Right to Know Act of 2017, which would require manufacturers of cleaning products to disclose certain chemical ingredients on the product label and on the manufacturer’s website. The final version of S.B. 258 was passed by the California Senate on September 13, 2017, by a vote of 27 to 13. The California Assembly passed the bill by a vote of 55 to 15, with nine votes not recorded, on September 12, 2017. The online disclosure requirements would apply to a designated product sold in California on or after January 1, 2020, and the product label disclosure requirements would apply to a designated product sold in California on or after January 1, 2021. The bill was co-sponsored by several non-governmental organizations as well as a few manufacturers of cleaning products including Honest Company, Seventh Generation, Procter & Gamble, SC Johnson, RB - Reckitt Benckiser, Unilever, Eco Lab WD-40, fragrance maker Givaudan, and the Consumer Specialty Products Association. More information on S.B. 258 is available in our memorandum “California Bill Would Require Disclosure of Cleaning Product Ingredients.”
The State of New York’s Department of Environmental Conservation’s (DEC) Division of Materials Management will soon release formally a similar initiative, the Household Cleaning Product Information Disclosure Program. This program will require manufacturers of domestic and commercial cleaning products distributed, sold, or offered for sale in New York State to furnish information regarding such products in a certification form prescribed by the Commissioner, and is expected to require disclosure of many more chemicals than S.B. 258. The period for comments on the draft certification form and guidance document related to the program ended on July 14, 2017.
Bergeson & Campbell, P.C. (B&C®) will soon be releasing a detailed memorandum on both developments to be available on our regulatory developments webpage.
On July 7, 2016, the Senate passed a bill, An Act to Reauthorize and Amend the National Sea Grant College Program Act, and for Other Purposes (S. 764), through agreement to the House's amendment to S. 764, with further amendment. While the bill is being referred to as a genetically modified organism (GMO) labeling bill, there is no actual requirement to print GMO ingredients on labels. Instead, companies would be required to print information on the packaging (through text, a symbol such as a QR code, or an electronic link) directing consumers to a website or phone line for more information. The national bioengineered food disclosure standard includes a definition for "bioengineering": "a food - (A) that contains genetic material that has been modified through in vitro recombinant [DNA] techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature," as well as specifics on how the new standard will be established through requirements and procedures. The new requirements and procedures include the following:
- Prohibition of a food derived from an animal to be considered a bioengineered food solely because the animal consumed feed produced from, containing, or consisting of a bioengineered substance;
- Determination of the amounts of a bioengineered substance that may be present in food for the food to be a bioengineered food;
- Establishment of a process for requesting and granting a determination by the Secretary regarding other factors and conditions under which a food is considered a bioengineered food;
- Provision of alternative reasonable disclosure options for food contained in small or very small packages; and
- Requirements and procedures specific to small food manufacturers.
Subtitle F includes a section on federal preemption, which states that any state regulations on "labeling of whether a food (including food served in a restaurant or similar establishment) or seed [in interstate commerce] is genetically engineered ... or was developed or produced using genetic engineering," and also a section on exclusion from federal preemption -- that nothing in the subtitle, or in Subtitle E, "shall be construed to preempt any remedy created by a State or Federal statutory or common law right." The bill will allow producers with a U.S. Department of Agriculture "certified organic" designation to display an additional "non-GMO" label on their products. S. 764 is now back in the House and is expected to be taken up before Congress's seven week recess beginning July 15, 2016.