On August 27, 2019, a New York judge struck down New York’s cleaning product ingredient disclosure program, finding that the program constituted a regulation and that it had not been promulgated in accordance with the State Administrative Procedure Act (SAPA).
In 2018, the New York State Department of Conservation (DEC) drafted requirements entitled “Household Cleansing Product Information Disclosure Program.” Originally set to become effective in July 2019, with enforcement then pushed back to October 2019, the Disclosure Program imposed significant obligations on cleaning product manufacturers, including a requirement to disclose all intentionally added ingredients even if present only in trace amounts, and a requirement that, with the disclosure, a senior management official certify under penalty of perjury that all the information provided was true and correct to the best of his/her knowledge.
The Household and Commercial Products Association (HCPA) and the American Cleaning Institute (ACI) challenged the Disclosure Program in a lawsuit filed against the DEC in 2018. In the action, the challengers (referred to as “petitioners”) alleged that the Disclosure Program: (1) constituted a “rule” established in violation of the SAPA; (2) was issued in excess of DEC’s authority; (3) violated the doctrine of legislative equivalency; and (4) was arbitrary and capricious. The DEC, however, characterized the Disclosure Program as mere guidelines interpreting existing New York law and regulations pertaining to cleaning product ingredient disclosure.
The court agreed with the petitioners, finding:
[T]he Disclosure Program, which dictates a new set of rules governing the types of ingredients that must be disclosed, the manner of their disclosure, and imposes a new requirement that each disclosure must be accompanied by a certification of its completeness and accuracy, constitutes a clear rule and not a mere interpretative statement without any legal or binding effect.
As such, the Disclosure Program was subject to the SAPA requirements. The court further found that the DEC failed to establish sufficient compliance with the SAPA, which would have required, among other things, consideration of regulatory impact and of regulatory flexibility for small businesses. Accordingly, the court concluded that the entire Disclosure Program was null and void, and refrained from addressing the petitioners’ other arguments.
The ruling did not reflect the substantive merits of the Disclosure Program, but only procedural infirmities in the way it was promulgated. Presumably, the DEC can and will try again, this time in accordance with New York’s rulemaking requirements under the SAPA. But what comes out of that process may well look different than the DEC’s original version.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product regulation. For knowledgeable advice and in-depth analysis on your chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].
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