On June 6, 2018, the State of New York’s Department of Environmental Conservation (NYSDEC) launched a new initiative to require the public disclosure of chemical ingredients in household cleaning products.
The cited authority for this program derives from Environmental Conservation Law (ECL) Article 35 and New York Code of Rules and Regulations (NYCRR) Part 659. The statute and regulations authorize the commissioner of NYSDEC to require manufacturers of domestic and commercial cleaning products distributed, sold, or offered for sale (including over the internet) in the state of New York to furnish information regarding such cleaning products in a form prescribed by the commissioner.
Under the program, formally entitled: The Household Cleansing Product Information Disclosure Program, manufacturers of cleaning products sold in New York are required to disclose ingredients of their products on their websites and identify any ingredients that appear on authoritative lists of chemical concern. The policy is being implemented by the Division of Materials Management and specific product ingredients and disclosure levels are listed in Appendices A-E. Detailed guidelines on the categories of information to be disclosed and where and how information should be posted are provided in Program Policy Form (DMM-2), which can be found on the NYSDEC website. All information subject to the policy must be posted on a manufacturer’s website in a manner that is obvious, noticeable and readily accessible, via the internet, to the public. In those cases, where information is withheld from the public as “Confidential Business Information”, the nature and degree of the information withheld should be disclosed, but such information need not be submitted to the department or posted online. Manufacturers must submit this Cleansing Product Information Disclosure Certification Form to the DEC. The certification must be signed by a senior management official certifying that the disclosed information is true, accurate, and complete to the best of their knowledge.
This policy specifically addresses ingredients containing nanoscale materials. As enumerated in subsection V.B.4(d) of the Policy Form all nanoscale material ingredients must provide a term describing the nature of the nanomaterial. Specifically it defines nanoscale material as follows:
A nanoscale material is a chemical substance that meets the TSCA [Toxic Substance Control Act] definition of a reportable chemical substance manufactured or processed at the nanoscale. That definition provides, in part, that a “reportable chemical substance is a chemical substance as defined in Section 3 of TSCA that is solid at 25° C and standard atmospheric pressure, that is manufactured or processed in a form where any particles, including aggregates and agglomerates, are in the size range of 1-100 nanometers in at least one dimension, and that is manufactured or processed to exhibit unique and novel properties because of its size. A reportable chemical substance does not include a chemical substance that is manufactured or processed in a form where less than 1 percent of any particles, including aggregates, and agglomerates, measured by weight are in the size range of 1-100 nanometers” (40 Code of Federal Regulations section 704.20(a)). For each ingredient that is a nanoscale material, a term describing the nanoscale material should be disclosed. For example, if the nanoscale material is carbon, the disclosure should use the term “nanoscale” carbon. Id.,See also, “New EPA Reporting Rule Requires Companies to Register Chemicals Containing Nanoscale Materials,”DRI Toxic Torts, June 15, 2017.
Responding to detractors of this policy who argue against the need for such a definition, the NYSDEC has pointed to the EPA’s required disclosure of nanomaterials under the TSCA Section 8(a) one time reporting rule and the definition of nanomaterials contained therein, along with its belief that “[t]he requirement to disclose nanoscale materials is important as the potential human health and environmental effects of such substances are not yet fully understood.” See generally, “Nanotechnology; The Next Mass Tort?” ABA Mass Torts Litigation, August 15, 2017.
Although there are no enumerated sanctions within the policy document, the effective date for compliance is July 1, 2019.
With growing consensus within the public health research community that new applications of nano-engineering are outpacing research into the understanding of the health and environmental risks, it can be expected that policies such as the NYSDEC’s will be adopted in other jurisdictions and expanded to include products other than cleaning products.