BILL NUMBER: SB 928 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 17, 2010
AMENDED IN SENATE MARCH 25, 2010
INTRODUCED BY Senator Simitian
FEBRUARY 1, 2010
An act to add Article 6 (commencing with Section 108670)
to Chapter 5 of Part 3 of Division 104 of the Health and Safety Code,
relating to An act to add Article 10.10 (commencing
with Section 25219.5) to Chapter 6.5 of Division 20 of the Health and
Safety Code, relating to consumer product safety.
LEGISLATIVE COUNSEL'S DIGEST
SB 928, as amended, Simitian. Consumer products: content
information.
Existing law regulates the labeling and use of various consumer
products, including toys and toxic household products.
Existing law, administered by the Department of Toxic Substances
Control, prohibits the management of hazardous waste, except in
accordance with the hazardous waste laws or the regulations adopted
by the department. A violation of these laws is a crime.
The bill would require a manufacturer or wholesaler of a
designated consumer product, as defined, on or before March 31, 2011,
to provide a notice that lists all substances, identified by a
number or other unique identifier, that are contained in that
product, by posting that information on the manufacturer's or
wholesaler's Internet Web site. A manufacturer or wholesaler that
does not maintain an Internet Web site would be required by the bill
to establish such an Internet Web site. The This
bill would prohibit the manufacture, sale, or distribution of a
designated consumer product, as defined, unless the manufacturer
discloses each ingredient, as defined, contained in the product,
identified in a prescribed manner, by posting that information on the
manufacturer's Internet Web site, and provides the Web site and page
address on the product label, along with a prescribed statement.
The bill would, under specified circumstances, allow nondisclosure
of ingredients defined as trade secrets.
The bill would declare that its provisions are severable
and if any provision of the bill is held invalid, that invalidity
would not affect other provisions or applications that can be given
effect without the invalid provision or application.
By creating a new crime, this bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be
cited, as the Consumer Right to Know Act.
SEC. 2. The Legislature finds and declares the
following:
(a) There are currently more than 80,000 chemicals in commerce
listed on the United States Environmental Protection Agency's
inventory of chemicals under the federal Toxic Substance Control Act.
(b) Each day a total of 42 billion pounds of chemical substances
are produced in, or imported in to, the United States for commercial
and industrial uses.
(c) According to a 1997 report published by the State Air
Resources Board there are more than 147,274,180 pounds of general
purpose cleaners sold in California each day.
(d) These substances come in direct contact with people in their
workplaces and in their homes.
(e) A 2009 biomonitoring report conducted by the federal Centers
for Disease Control and Prevention found in measurable amounts 212
chemicals in the blood and urine of a representative sample of the
California population.
(f) Current federal and state laws do not require manufacturers to
disclose to consumers the ingredients contained in all cleaning
products.
(g) According to the United States Environmental Protection
Agency, nearly 20 percent of all chemicals in commerce in the United
States are kept secret by manufacturers.
(h) There is a growing awareness and concern among consumers about
the exposure to chemicals in their homes and workplaces and the lack
of transparency about chemical content in the consumer products they
purchase and use and the potential adverse health and environmental
impacts caused by those products.
(i) It is, therefore, the intent of the Legislature in enacting
the Consumer Right to Know Act to provide greater transparency to
consumers about the ingredients of air care, automotive, cleaning,
and polish and floor maintenance products in order to empower
consumers to make informed decisions about the products they purchase
and use.
SEC. 3. Article 10.10 (commencing with Section
25219.5) is added to Chapter 6.5 of Division 20 of the
Health and Safety Code , to read:
Article 10.10. Chemically Formulated Consumer Products
25219.5. For purposes of this article, the following definitions
shall apply:
(a) "Chemically formulated consumer product" means a consumer
product that is manufactured from chemicals or chemical compounds to
be used by household, institutional, commercial, and industrial
consumers without further processing for specific purposes. For the
purposes of this subdivision, dilution by the consumer is not
considered further processing.
(b) "Consumer product" has the same meaning as that term is
defined in subdivision (e) of Section 25251.
(c) "Department" means the Department of Toxic Substances Control.
(d) "Designated consumer product" means any product included in
the following categories:
(1) "Air care product" means a chemically formulated consumer
product designed, or labeled to indicate that the purpose of the
product is, for masking odors, or for freshening, cleaning, scenting,
or deodorizing the air.
(2) "Automotive product" means a chemically formulated consumer
product designed, or labeled to indicate that the purpose of the
product is, to maintain the appearance of a motor vehicle, including
products for washing, waxing, polishing, cleaning, or treating the
exterior or interior surfaces of motor vehicles. "Automotive product"
does not include automotive paint or paint repair products.
(3) "Cleaning product" means a soap, detergent, or other
chemically formulated consumer product designed, or labeled to
indicate that the purpose of the product is, to clean or disinfect
surfaces, including, but not limited to, floors, furniture,
countertops, showers and baths, or other hard surfaces, such as
stovetops, microwaves, and other appliances, fabric care, or dish or
other ware washing.
(4) "Polish or floor maintenance product" means a chemically
formulated consumer product, such as polish, wax, or a restorer,
designed, or labeled to indicate that the purpose of the product is,
to polish, protect, buff, condition, temporarily seal, or maintain
furniture, floors, metal, leather, or other surfaces.
(e) "Hazardous substance" means a chemical, or chemical compound,
including breakdown products, identified by a state or federal agency
or other governmental body or the World Health Organization as
potentially having properties of eye and skin irritation,
sensitization, acute or chronic toxicity, carcinogenicity,
cytotoxicity, neurotoxicity, developmental or reproductive toxicity,
or both, endocrine disruption, or ecotoxicity.
(f) "Incidental ingredient" means a chemical that has no technical
or functional effect on the designated consumer product. "Incidental
ingredients" are any of the following:
(1) Substances that have no technical or functional effect in the
product, but are present by reason of having been incorporated into
the product in an amount not greater than 0.01 percent as an
ingredient of another product.
(2) Processing aids. Processing aids are either of the following:
(A) Substances that are added to a designated consumer product
during the processing of the designated consumer product, but are
removed from the product in accordance with good manufacturing
practices before it is packaged in its finished form.
(B) Substances that are added to a designated consumer product
during processing for their technical or functional effect in the
processing, are converted to substances the same as constituents of
declared ingredients, and do not significantly increase the
concentration of those constituents.
(3) Incidental ingredients do not include substances that are
produced as a result of the processing of the designated consumer
product.
(g) "Ingredient" means a chemical in a designated consumer
product. As used in this subdivision, ingredients may be substances
or compounds. The term "ingredient" does not include incidental
ingredients.
(h) "Manufacturer" means a person or entity that manufactures,
assembles, produces, packages, repackages, or relabels a designated
consumer product that is sold, distributed, or used in this state.
(i) "Trade secret" has the same meaning as that term is defined in
subdivision (d) of Section 3426.1 of the Civil Code, except as
provided by this subdivision.
(1) Any ingredient or incidental ingredient that is a hazardous
substance shall not be considered a trade secret.
(2) Any designated consumer product or ingredient or incidental
ingredient of a designated consumer product that can be reverse
engineered shall not be considered a trade secret.
25219.6. Commencing July 1, 2011, no designated consumer product
may be manufactured, sold, or otherwise distributed in this state
unless the manufacturer discloses each ingredient contained in the
product by posting the product ingredient information on the
manufacturer's Internet Web site and provides the Web site and page
address on the label of the designated product along with a statement
directing the consumer to the Internet Web site for information
concerning ingredients contained in the product.
25219.7. (a) Ingredients in a designated consumer product shall
be identified by the Chemical Abstract Service (CAS) number and
either the Consumer Specialty Products Association Consumer Product
Ingredients Dictionary (CSPA dictionary) name, if and when the
dictionary is made accessible to the public, or the International
Nomenclature Cosmetic Ingredient (INCI) name. If there is not a CSPA
dictionary name or INCI name, then the ingredients in a designated
consumer product shall be identified by the CAS number and the
International Union of Pure and Applied Chemistry (IUPAC) name. If
there is not an CSPA dictionary name, INCI name, or IUPAC name, then
the product shall be identified by the CAS number and common chemical
name.
(b) In identifying the ingredient name, the manufacturer shall
also identify which of the nomenclature references were used for
ingredient identification.
25219.8. In the event there is a substitution of an ingredient in
a designated consumer product, the disclosure required by this
article shall specify alternatives to any ingredients that may be
affected. An alternative ingredient shall be declared either:
(a) Immediately following the normally used ingredient for which
it substitutes, in which case it shall be identified as an
alternative ingredient by the word "or" following the name of the
normally used ingredient and any other alternative ingredient.
(b) Following the declaration of all normally used ingredients, in
which case the alternative ingredients in the group so listed shall
be identified as alternative ingredients by the phrase "may also
contain."
25219.9. For purposes of this article, a manufacturer shall not
be required to disclose ingredients falling within the definition of
trade secret, unless that information is otherwise required to be
publicly disclosed under another law of this state, has been publicly
disclosed by the manufacturer, or has been lawfully disclosed by a
governmental entity. A manufacturer shall indicate the existence of
trade secret information in the disclosure required under Section
25219.6 by individually identifying trade secret protected chemicals
and chemical compounding using a functional class descriptor name and
stating that that ingredient is a trade secret.
25219.10. (a) Notwithstanding Section 6254.7 of the Government
Code, if a manufacturer believes that disclosure of information
pursuant to this section involves the release of a trade secret, the
manufacturer shall make written disclosure to the department and
substantiate in writing the basis of the trade secret. In its written
notice, the manufacturer shall specify the information it is keeping
confidential and provide to the department at the time of submission
full justification and documentation in writing supporting the trade
secrecy claim, including specific explanation and documentation of
all of the following:
(1) How the information derives independent economic value, actual
or potential, from not being known to the general public.
(2) The ease or difficulty by which information could be properly
acquired or duplicated if disclosure is made.
(3) How revealing the chemical identity would expressly reveal the
process by which the chemical is made or the portion of a mixture
the chemical comprises or the proprietary nature of the chemical
itself.
(4) What efforts are taken by the manufacturer to maintain its
secrecy.
(5) The barriers to reverse engineering of the relevant consumer
product.
(6) The basis of the manufacturer's determination that the
ingredient is not a hazardous substance.
(b) Subject to this section, the department shall protect from
disclosure a trade secret designated as a trade secret by the
manufacturer for a period of six years, if that trade secret is not a
public record. After that period expires, the manufacturer may
resubstantiate the need for trade secrecy protection.
(c) Upon either, receipt of a request for the release of
information to the public that includes information that the
manufacturer has notified the department is a trade secret and that
is not a public record, or a determination by the department that
information claimed as a trade secret is subject to public
disclosure, both of the following procedures apply:
(1) The department shall notify the manufacturer that disclosed
the information to the department of the request or determination, in
writing by certified mail, return receipt requested.
(2) The department shall release the information to the public,
but not earlier than 30 days after the date of mailing the notice of
the request for information or determination, unless, prior to the
expiration of the 30-day period, the manufacturer initiates an action
in an appropriate court for a declaratory judgment that the
information is subject to protection under this section or for a
preliminary injunction prohibiting disclosure of the information to
the public and promptly notifies the department of that action. In
order to prevent the department from releasing the information to the
public, the manufacturer shall obtain a declaratory judgment or
preliminary injunction within 30 days of filing an action for a
declaratory judgment or preliminary injunction.
(d) This section does not authorize a manufacturer to refuse to
disclose ingredient information to the department.
(e) Any information that a court, pursuant to this section,
determines is a trade secret and not a public record, or pending
final judgment pursuant to subdivision (c), shall not be disclosed by
the state agency to anyone, except to an officer or employee of a
city or county, the state, or the United States, or to a contractor
with a city or county, or the state, and its employees, if, in the
opinion of the state agency, disclosure is necessary and required for
the satisfactory performance of a contract, for the performance of
work, or to protect the health and safety of the employees of the
contractor.
25219.11. The provisions of this article are severable. If any
provision of this article or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Article 6 (commencing with Section
108670) is added to Chapter 5 of Part 3 of Division 104 of the Health
and Safety Code, to read:
Article 6. Consumer Product Content Information
108670. The Legislature finds and declares all of the following:
(a) The federal Consumer Product Safety Act (15 U.S.C. Sec. 2051
et seq.; the federal act) was enacted with the purpose of protecting
the public against unreasonable risks of injury associated with
consumer products, by assisting consumers in evaluating the
comparative safety of consumer products, and developing uniform
safety standards for those products.
(b) The federal act generally defines the term "consumer product"
as a product produced or distributed for sale to a consumer for use
in or around a household, a school, in recreation, or otherwise, but
excludes certain items, including tobacco, motor vehicles,
pesticides, drugs, devices, or cosmetics, and food.
(c) The state is aware of, and appreciates, the regulatory regime
established by the federal act, but the federal act does not fully
regulate the chemical-exposure risks posed by many consumer products.
(d) The federal act provides that if a consumer product safety
standard applies to a risk of injury associated with a consumer
product, a state is prohibited from establishing a safety standard or
regulation that deals with the same risk of injury associated with
that consumer product.
(e) However, the federal act allows a state to impose safety
requirements that are more stringent than federal standards, if the
state standard is designed to protect against a risk of injury
associated with a consumer product and if the state standard provides
a higher degree of protection from that risk than the federal
standard.
(f) The informational requirements of this article would impose
additional safety requirements that do not deal with the same risk of
injury for consumer products that is associated with existing
consumer product safety standards under the federal act or that are
more stringent than the federal standards and provide a higher degree
of protection from risk.
108671. For purposes of this article, the following definitions
shall apply:
(a) "Designated consumer product" means a product included in the
following categories:
(1) "Air care product," which means a chemically formulated
product designed to affect indoor air.
(2) "Automotive product," which means a chemically formulated
product designed to maintain the appearance of a motor vehicle.
(3) "Cleaning product," which means a soap, detergent, or other
chemically formulated product designed for personal hygiene, fabric
care, dish or other ware washing, or surface cleaning.
(4) "Polish or floor maintenance product," which means a
chemically formulated product, including, but not limited to, a
polish, wax, or a restorer designed to polish, protect, or maintain
furniture, floors, metal, leather, or other surfaces.
(b) "Manufacturer" means a person who manufactures a designated
consumer product in this state.
(c) "Wholesaler" means a person who purchases a designated
consumer product, for resale in this state, from a person who did not
manufacture the designated consumer product in this state.
108672. On or before March 31, 2011, a manufacturer or wholesaler
of a designated consumer product shall provide a notice that lists
all substances, identified by a number or other unique identifier,
that are contained in that product.
108673. (a) A manufacturer or wholesaler shall provide the notice
required by Section 108672 by posting the information on the
manufacturer's or wholesaler's Internet Web site.
(b) A manufacturer or wholesaler subject to this section that does
not maintain an Internet Web site shall establish an Internet Web
site for purposes of compliance with this article.
108674. The provisions of this article are severable. If any
provision of this article or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.