Potential Implications of New York's Proposed Consumer Right to Know Act

Posted on Behalf of  Allison Killius

Posted on behalf of Allison Killius.

In January, 2019, New York Governor Andrew Cuomo called for the evaluation and development of on-package labeling regulations for specific products, in order to indicate the presence of potentially hazardous chemicals (AKA the Consumer Right to Know Act). Gov. Cuomo’s proposal includes creating a list of more than “1,000 carcinogens” and other chemicals for which labeling on personal care products may be required, as well as determining the labeling feasibility and the products to be targeted.

The Act is comparable to California’s Proposition 65 (Prop 65), under which companies that sell products in California are required to place warning labels on their products if such products expose users to certain levels of a chemical(s) “known to the state” to cause cancer or reproductive harm. As such, whether New York will require manufacturers to either place a physical label on their products or disclose ingredient information online remains to be seen.

According to Gov. Cuomo’s press release, the Consumer Right to Know Act would be an extension of the New York State Department of Environmental Conservation’s (NYSDEC) Household Cleansing Product Information Disclosure Program (HCPIDP). The HCPIDP, which went into effect in 2017, states that all household cleaning product manufacturers who sell their products in New York must list all chemical ingredients on their websites, and identify any chemicals that appear on “authoritative lists” of chemicals of concern. The Consumer Right to Know Act would further give New York’s Department of Health authority to require similar disclosures from personal care product manufacturers. Specific details of the Consumer Right to Know Act have not been released, but the proposed regulation appears to model the HCPIDP.

Under the HCPIDP, NYSDEC compiled previously-established lists of chemicals of concern based upon national regulatory agency and institutional toxic chemical databases, including Prop 65-listed chemicals (see Appendix B). However, New York’s list of toxicants covers a much broader range of human health effects than does Prop 65, including carcinogens, neurotoxicants, respiratory sensitizers, reproductive and developmental toxicants, allergens, and asthmagens. In addition to human health effects, the list also references lists of environmental chemicals of concern, including ozone depletors and marine priority action chemicals.

The HCPIDP is also more encompassing in its definition of “chemicals of concern” than Prop 65, and requires cleaning product manufacturers to identify “likely” human carcinogens from lists of chemicals of concern, in addition to “known” human carcinogens. There is a large gap in scientific evidence between naming a “known” carcinogen versus a “likely” carcinogen, and whether governmental agencies in New York will distinguish between the two in the Consumer Right to Know Act is currently unclear.

Some studies have indicated that Proposition 65 has been successful at reducing consumer exposure to lead, mercury, and other hazardous chemicals (Cox and Hirsch, 2019; Rechtschaffen and Williams, 2005). If enacted, New York’s new law could provide consumers with greater control over their exposure to potentially toxic chemicals. California’s law, however, has been criticized of overly warning consumers. It requires, for example, warnings in enclosed parking garages, at amusement parks, and on wood furniture, which some critics say leads to a “warning fatigue” that can undermine the labeling of critical dangers.

The Consumer Right to Know Act would be enforced by three New York state agencies: the Department of Environmental Conservation, the Department of Health, and the Department of State. Considering the breadth of chemicals New York governmental agencies may require manufacturers to disclose to consumers, enforcing the law could require a huge amount of state resources.

The timeline of action on the Consumer Right to Know Act is not yet public. We plan to provide updates as Gov. Cuomo’s office releases more details.

Cardno ChemRisk scientists have extensive professional experience conducting Proposition 65 and other regulatory exposure and risk assessments, including for personal care and cleaning products.