California Governor Gavin Newsom has signed two new bills into law that will require new and expanded ingredient disclosure requirements in feminine hygiene products and cosmetics. The enactment of these laws follows the recently-enacted Cleaning Product Right to Know Act of 2017, which established the first-in-nation ingredient disclosure requirements for cleaning products. These laws will have nationwide impact, as manufacturers are generally unable to segregate the distribution of their products between California and the rest of the country. The following provides a brief overview of each.
AB 1989—Menstrual Products Right to Know Act of 2020
Overview: This law requires feminine hygiene product manufacturers to disclose intentionally added ingredients on-label and on-line for products manufactured on or after January 1, 2023. The requirements for on-label and on-line disclosure are the same.
Product Scope: Tampons, pads, sponges, menstruation underwear, disks, and menstrual cups.
Intentionally Added Non-Fragrance Ingredients: If the intentionally added ingredient is on one of 22 specified designated lists, then the ingredient must be disclosed at any level and does not enjoy confidential business information protection. If the ingredient is not on a designated list, it must be disclosed at any level unless the ingredient is confidential business information, in which case the ingredient may be listed by its common name to protect its confidential identity.
Intentionally Added Fragrance Ingredients: Like intentionally added non-fragrance ingredients, if an intentionally added fragrance ingredient is on a designated list, it must be disclosed at any level. If the intentionally added fragrance ingredient is a fragrance allergen included in Annex III of the EU Cosmetics Regulation No. 1223/2009, then it must be disclosed if present at or above 10 parts per million. If the intentionally added fragrance ingredient is not on any list, then it must be disclosed if present at or above 100 parts per million.
Enforcement: No private right of action, but the new law could be prosecuted by the California Attorney General, district attorneys, city attorneys or prosecutors, or private enforcers under California's Unfair Competition Law (UCL), which provides for monetary penalties of up to $2,500 per violation. Private enforcers could also could seek injunctive relief and restitution under the UCL, as well as attorney's fees under California's private attorney general statute.
SB 312—Cosmetic Fragrance and Flavor Ingredient Right to Know Act of 2020
Overview: Commencing January 1, 2022, this law will require cosmetic product manufacturers to disclose to the California Department of Public Health (DPH) a list of each intentionally added fragrance or flavor ingredient that are found on one of 22 specified designated lists at any level. These designated lists mirror those found in AB 1989. SB 312 does not require new on-label disclosure obligations.
Product Scope: An article for retail sale or professional use intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.
Fragrance Allergens: Although intentionally added fragrance and flavor ingredients found on a designated list must be disclosed at any level, an intentionally added fragrance allergen that is present in a rinse-off cosmetic product must be disclosed if present at a concentration at or above 100 parts per million. If the intentionally added fragrance allergen is present in a leave-on cosmetic product, then it must be disclosed if present at a concentration at or above 10 parts per million.
Other Disclosures: In addition to disclosing the above ingredients, manufacturers must also disclose (1) whether the product is intended for professional or retail use; (2) the Chemical Abstracts Service (CAS) number for each ingredient and allergen; and (3) the corresponding Universal Product Code (UPC) for the product.
Enforcement: Same enforcement mechanism as AB 1989.
Arnold & Porter—through both its California Government Affairs and Consumer Products teams—has been actively engaged in all aspects of California's ingredient disclosure laws, from their inception to their implementation. Please contact our firm if you have any questions about existing or forthcoming ingredient disclosure laws in California.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
