New SDS Multi-Language Website Posting Required for Some Disinfectants and Cosmetics

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To protect workers in the professional salon industry from risks of frequent exposure to what may be considered hazardous chemicals, starting July 1, 2020, California Assembly Bill No. 647 (“AB 647”) will require product manufacturers or importers of commercial products including a “hazardous substance” that constitutes a “cosmetic” or a “disinfectant” to post on their websites Safety Data Sheets (“SDS”) translated into multiple languages considered to be commonly used in the beauty industry.

AB 647 enacts California Labor Code Section 6390.2, which applies to businesses that manufacture or import a “hazardous substance or mixture of substances” that constitutes a cosmetic or is used as a disinfectant, and that are required under existing law to create a SDS for the product. The new law requires businesses to not only post their products’ SDS in English on their business website, but also translate and post the SDS in Spanish, Vietnamese, Chinese and Korean – languages considered common to the beauty care industry. These SDS must be posted by the product’s brand name or other commonly known name, in a manner generally accessible to the public. If a separate SDS exists based on color or tint, such as for hair dyes used in salons, each separate SDS must also be translated and posted.

“Cosmetic” means any article, or its components, intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to, the human body, or any part of the human body, for cleansing, beautifying, promoting attractiveness, or altering the appearance. Soap is not considered a cosmetic. (California Health and Safety Code § 109900)

Disinfectants are defined under the Health & Safety Code sections applicable to Barbering and Cosmetology professions as any product registered by the U.S. Environmental Protection Agency (US EPA) that has demonstrated bactericidal, fungicidal and virucidal activity, in liquid form to disinfect non-electrical tools and spray or wipe form to disinfect electrical tools and shears. (16 CCR § 977) A “hazardous substance” for purposes of AB 647 means any chemical found on the Director’s List of Hazardous Substances that exceed certain specified limits.

AB 647 does not impose any new legal requirements for manufacturers and importers of cosmetics and disinfectants to create SDS where SDS were not previously required. Rather, AB 647 only requires manufacturers and importers of such products that are already required to develop or maintain SDS to post and maintain those SDS in the required languages on their websites.

AB 647 amended the Labor Code with the intent of protecting “workers in the professional salon industry from the risks of being exposed to harsh chemicals on a daily basis,” said the bill’s sponsor, Assemblyman Ash Kalra.
The new law does not apply to cosmetics and disinfectants that are consumer products. The Labor Code generally exempts hazardous substances contained in products intended for personal consumption by employees in the workplace, or consumer products packaged for distribution to, and use by, the general public. However, professional use products (with hazardous ingredients), would need to comply because they are used by employees in the workplace.

“Disinfectants” as used in the new law are defined as any product registered by the U.S. Environmental Protection Agency (US EPA) that has demonstrated bactericidal, fungicidal and virucidal activity, in liquid form to disinfect non-electrical tools and spray or wipe form to disinfect electrical tools and shears. Although this language is directed toward disinfectants used on tools, it might be construed to apply when disinfectants can be used on other surfaces.

Conkle, Kremer & Engel’s team of attorneys provides counseling on regulatory compliance matters, and can assist businesses in determining whether they need to comply with AB 647 and other laws and regulations affecting personal care products.

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California’s Cleaning Product Right to Know Act Requires Ingredient Disclosure

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California became the first state in the nation to have a cleaning products disclosure law, after Governor Brown signed the Cleaning Product Right to Know Act of 2017 (S.B. 258 (Lara)) into law in late 2017.

The Cleaning Product Right to Know Act requires manufacturers of certain cleaning products sold in California to disclose on the product label and on the product’s Internet web site certain information related to known hazardous chemicals contained in the product.  Manufacturers will have until January 1, 2020 to comply with the online disclosure requirements, and until January 1, 2021 to comply with the product label disclosure requirements.  However, any intentionally added ingredient that is regulated by California’s Safe Drinking Water and Toxic Enforcement Act (commonly known as Proposition 65) will not have to be listed until January 1, 2023.

The new law applies to so-called “designated products”, which are defined as a finished product that is an air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic or institutional cleaning purposes.  It does not apply to foods, drugs and cosmetics, trial samples, or industrial products specifically manufactured for certain industrial manufacturing processes.

The product label will be required to disclose each intentionally added ingredient contained in the product that is included on any of 22 specified designated chemical lists – including chemicals listed pursuant to Proposition 65.  Alternatively, manufacturers may list all intentionally added ingredients contained in the product unless it is confidential business information.  The Act also requires the disclosure of fragrance allergens greater than 0.01 percent (100 ppm).  Additional requirements include the manufacturer’s toll-free telephone number and Internet web site address on the product label.

As for the online disclosure requirements, manufacturers must list all intentionally added ingredients and state their functional purpose.  All nonfunctional constituents present at above 0.01 percent (100 ppm) must also be listed.  The website must include electronic links for designated lists and a link to the hazard communication safety data sheet for the product.  In addition, specific requirements apply for the disclosure of fragrance allergens online.

The Act also adds a section to the California Labor Code imposing an obligation on employers who are required to provide employees with Safety Data Sheets (SDS).  Those employers must similarly make the printable information from the online disclosure available in the workplace.

Although it is a state law, the effect of the Cleaning Product Right to Know Act is certain to be felt by manufacturers across the country who sell their products into California, as is true of many of California’s other regulatory schemes, including Proposition 65, and will most likely result in a nationwide relabeling of covered products.

Given the Act’s numerous and in some cases highly technical requirements, manufacturers of cleaning products would be well advised to determine whether any of their products are subject to the Act, and take steps now to ensure compliance by 2020.  Conkle, Kremer & Engel attorneys stand ready to help manufacturers handle all that is coming their way.

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