AB 1989, SB 312: New ingredient disclosure requirements in menstrual products, cosmetics

Assembly Bill 1989 and Senate Bill 312 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.

AB 1989: Menstrual Products Right to Know Act of 2020

This law requires feminine hygiene product manufacturers to disclose intentionally added ingredients on the product label and on-line for products manufactured on or after Jan. 1, 2023. A menstrual product means a product used to collect menstruation and vaginal discharge, including tampons, pads, sponges, menstruation underwear, disks and menstrual cups, whether disposable or reusable.

Intentionally added ingredients are those that serve a technical or functional purpose in the finished menstrual product. If the intentionally added ingredient is on one of 22 specified authoritative chemical lists, then the ingredient must be disclosed if present in the product at any level. Such ingredients do not enjoy confidential business information protection. If the ingredient is not on an authoritative list, it must be disclosed if present in the product 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.

The law treats intentionally added fragrance ingredients differently. Like intentionally added ingredients, if an intentionally added fragrance ingredient is on an authoritative list, it must be disclosed if present in the product 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 in the product at or above 10 parts per million. If the intentionally added fragrance ingredient is not on an authoritative list or Annex III, then the ingredient must be disclosed if present in the product at or above 100 parts per million.

The on-line disclosure requirements, which are the same as the on-label requirements, go into effect on Jan. 1, 2023.

The law does not create a new private right of action; rather, the California attorney general, district attorneys, city attorneys or prosecutors, or private enforcers can bring claims under California's Unfair Competition Law, which provides for monetary penalties of up to $2,500 per violation. Private enforcers could also could seek injunctive relief and restitution under the same UCL, as well as attorney fees under California's private attorney general statute.

SB 312: Cosmetic Fragrance and Flavor Ingredient Right to Know Act of 2020

Commencing Jan. 1, 2022, this law will require cosmetic product manufacturers to disclose to the California Department of Public Health a list of each intentionally added fragrance or flavor ingredient that are found on one of 22 specified authoritative chemical lists at any level. These authoritative lists are the same as those found in AB 1989. SB 312 does not require new on-label disclosure obligations.

Cosmetic product means 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.

Although intentionally added fragrance and flavor ingredients found on an authoritative 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 in the product 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 in the product at or above 10 parts per million.

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 number for each ingredient and allergen; and (3) the corresponding Universal Product Code for the product.

Like the Menstrual Products Right to Know Act of 2020, this law does not create a new private right of action, but allows the California attorney general, district attorneys, city attorneys or prosecutors, or private enforcers to bring claims under the UCL. Private enforcers could also could seek injunctive relief and restitution under the UCL, as well as attorney fees under California's Private Attorneys General Act.