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Fragrance Ingredient Communication: Negotiating and Implementing California’s SB 258

Fragrance Ingredient Communication: Negotiating and Implementing California’s SB 258

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Representing fragrance companies means listening, educating and promoting a specific point of view. At IFRANA, we represent fragrance and our viewpoint reflects those of companies that create fragrances and supply fragrance materials, as well as companies that sell finished products that contain fragrance. Our point of view is straight­forward: we believe in a consumer’s right to know, and we believe that information must be based on sound science to be accurate, reliable and relevant. As a consumer, having confidence in the products my family and I use is paramount. It is also important to have information that is meaningful, not overwhelming or confusing.

We recognize there are segments of the population that desire more information about the products they use. This desire came to the legislative forefront in 2017 with the passage of California’s SB 258 (a cleaning product ingredient disclosure bill). When SB 258 was introduced on February 8, 2017, the draft was considerably different than the version Governor Brown signed on October 15, 2017. The evolution of the draft came about through active listening and open discussion. As stakeholders became more knowledg­eable, they found common ground and negotiated legislation that ultimately balances consumer interests with meaningful fragrance intellectual property protection, which is critical for artistry, innovation and the survival of the many jobs that depend on the fragrance industry.

After years of voluntary industry efforts and advancements, the passage of California SB 258, or The Cleaning Product Right to Know Act, marks the first state-mandated cleaning product ingredient transparency measure. Beginning January 1, 2020, manufacturers of air care, automotive, general cleaning and floor maintenance and polish products must communicate ingredient information online; on-label requirements begin January 1, 2021. Fragrance companies will be supporting these labeling efforts to meet these implemen­tation dates. The shift from industry-led initiatives to compliance with new state law will present challenges—and areas of opportunity—in 2018 and beyond.


Connecting with Consumers

All stakeholders—from trade associations to consumer coalitions—have the same goal, ensuring that consumers have confidence in the products they use. In that spirit, when referring to the new requirements of SB 258, the phrase “fragrance ingredient communic­ation” better explains the goal of the legislation.

SB 258, As Introduced

On February 8, 2017, State Senator Ricardo Lara, a Democrat representing the Bell Gardens area of Los Angeles (33rd District), introduced SB 258, The Cleaning Product Right to Know Act. At the time of its introduction, the bill was co-sponsored by the Environmental Working Group (EWG), Breast Cancer Prevention Partners and Women’s Voices for the Earth. The National Resources Defense Counsel (NRDC) later became a co-sponsor.

As introduced, SB 258 required full ingredient disclosure online and on-label and provided no protection for confidential business information (CBI). Though a number of NGOs and coalitions supported SB 258 because of its intended purpose, industry—throughout the supply chain—was uniformly opposed (or opposed unless amended), as the first version of SB 258 left a number of uncertainties and infeasib­ilities and would have, paradoxi­cally, led to further consumer confusion. IFRANA’s opposition was also rooted in the fact that ingredient communication is a matter of balance. Consumers have expressed interest in ingredient information, but meaningful communication should not over-warn, cause confusion or occur without context.

With all interested parties supporting a similar cause—promoting consumer confidence—the next question was how to build consensus.


Political Climate

Any assessment of SB 258 had to begin with the ongoing efforts to pass cleaning product legislation in California over the past several legislative sessions. Most recently, AB 708, a similar measure, did not move beyond the California Assembly in the 2015-2016 session; but 2017 was different. The combination of public and political interest along with individual company transparency efforts created a favorable environment for SB 258. After more than a decade of interest, IFRANA and our allied trades prepared for the passage of cleaning product ingredient communication legislation. Chief among our priorities was balancing consumer interests, including cost of goods, with industry practicality. IFRANA, in part, played an important role in helping all sides understand the unintended consequences of SB 258, as introduced.


Stakeholder Engagement

After the introduction of SB 258, IFRANA and its member companies worked directly with Senator Lara’s office and the bill’s sponsors to improve the legislation. While IFRANA and its allied trades engaged in traditional advocacy work (position letters, meetings with legislators, industry strategy meetings, etc.), it became clear that – despite shared goals – stakeholders on the industry side and on the NGO side were not seeing eye-to-eye on how to best communicate cleaning product ingredients.

Senator Lara recognized that stakeholders had more in common than they might have realized, and essentially required buy-in from all sides. The Senator’s Office formed a working group of stakeholders. This working group met in-person on three separate occasions and coordinated with their respective coalitions to drive consensus. This willingness to communicate, educate—and be educated—led to meaningful outcomes for all participants. Ultimately, because SB 258 achieved a level of balance of interests, IFRANA withdrew its opposition to The Cleaning Product Right to Know Act. While concerns remained regarding the proliferation of a hazard-based approach to chemical management and potential difficulties with implementing SB 258, IFRANA supported the effective negotiating process and the productive dialogue. The balance reflected in SB 258 afforded fragrances necessary CBI protections—protections critical to preserving artistry, innovation and jobs that rely on the fragrance industry—while providing important ingredient information to consumers.


SB 258 Becomes Law

California Governor Edmund G. Brown, signed The Cleaning Product Right to Know Act on October 15, 2017. As predicted, the vote count indicated that SB 258 had sufficient support among California legislators. The California State Assembly passed the bill on a bipartisan vote (Aye 55, No 15, Abstain 9) with the Senate voting (Aye 27, No 13).

T-1. Amendments to SB 258

SB 258, As Introduced 2-8-17 SB 258, As Enacted 10-15-17
No CBI Protection CBI, including protections for fragrance
No feasibility regarding “contaminants of concern” Removal of “contaminants of concern” language
Lack of clarity re de minimis, “incidental ingredient,” natural complex substances Clarifying language and/wor solutions
No variations/choices between on label and online disclosure Varying mechanisms on label/online
No alignment with federal requirements (particularly pictogram) No pictogram requirement
No time for implementation (effective date January 1, 2018) Timeline extended
No consideration for regulatory updates Timeline for implementing regulatory updates
No positive statements or industry considerations in the preamble or bill text Removal of problematic preamble lanuage; industry feedback incorporated
The table reflects the difference between SB 258’s language, as introduced, and the compromises that IFRANA helped to achieve.

 

While SB 258 requires ingredient communication for all cleaning product ingredients, fragrance was often—and continues to be—discussed separately. Specific to fragrance disclosure, manufacturers will be required to disclose all fragrance ingredients above 100 ppm in the finished product, unless exceptions allow the mixture to be claimed as confidential business information (CBI) (see T-2)1.

T-2. CBI and SB 258

Protections Limitations
  • SB 258§108955 (b)(1) A manufacturer may protect and is not required to disclose any intentionally added ingredient, including any fragrance ingredient, or combination of intentionally added ingredients that meet the definition of confidential business information…
  • SB 258§108952 Claimed on TSCA Confidential Inventory or Uniform Trade Secret Act
    • “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
      • Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
      • Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
  • CBI cannot be claimed for any intentionally added ingredient that appears on a designated list (CA DTSC), of which there are approximately 60-70 fragrance materials
  • CBI cannot be claimed for nonfunctional constituents (34 identified substances) present at or above 100 ppm (10 ppm for 1,4 dioxane)
  • CBI cannot be claimed for fragrance allergens present at or above 100 ppm, as required to be listed by the EU Detergents Regulation.
    • On label, “fragrance” for fragrance allergens present at or above 100 ppm (remains 26 EU allergens, regardless of updates) or the statement “Contains fragrance allergens.”
    • Online, manufacturers must disclose fragrance allergens at or above 100 ppm, as required to be listed by the EU Detergents Regulation (including future updates).
Outlined CBI protections and limitations on CBI.

 

Since the effective dates vary for online requirements and on-label requirements, it may be helpful to think about fragrance ingredient communic­ations in this way. Manufacturers have two on-label options for communicating fragrance ingredients (see T-3).

T-3. On-Label Fragrance Ingredient Communication Options

Option 1§108954 (a)(1) Option 2§108954 (a)(2)
Communicate fragrance ingredient(s) that is included on a Designated List (DTSC); and Communicate fragrance ingredient(s) unless Confidential Business Information (CBI); fragrance ingredient(s) can be listed on label as “fragrance”
Communicate allergen(s) (26 EU allergens), when present in the product at or above 0.01 percent (100 ppm); and Contains fragrance allergen(s)” must be on label when a fragrance allergen is present (including subsequent updates to EU allergens) in the product at or above 0.01 percent (100 ppm)
Communicate ingredients on California Proposition 65 warning, if applicable, beginning 2023. Communicate ingredients on California Proposition 65 warning, if applicable, beginning 2023.

 

Revisions, as required by §108956 (f-h), must be made to a product label. A manufacturer is required to make a revision to fragrance information disclosed on a product label if there is an applicable change in a designated trait list (DTSC) or, under Option 2, if the EU allergens are updated, the law requires inclusion of subsequent updates. A manufacturer has up to 18 months after the adoption of the revised list by its authoritative body to make the revision, unless a later effective date for changes is imposed for California Prop 65 or EU Allergens.

Online, under §108956 (b), the manufacturer must post on its website, in an electron­ically readable format, information related to fragrance ingredients or allergens. Manufacturers must list all fragrance ingredient(s) that are present in a designated product at a concentration at or above 0. 01 percent (100 ppm), unless it is CBI. Manufacturers must also list all fragrance ingredients included on a Designated List (DTSC Authoritative Lists), on EU allergens list or subsequent updates to those regulations, when present in the product at a concentration at or above 0. 01 percent (100 ppm), and beginning in 2023, any ingredient with a California Proposition 65 warning. A fragrance ingredient’s function may be listed as “fragrance ingredient.” Under §108956 (e, g-h), a manufacturer is required to make a revision to fragrance information disclosed online if there is an applicable change in a designated trait list (DTSC Authoritative Lists) or the EU allergens are updated. A manufacturer shall make the revision no later than six months after the adoption of the revised list by its authoritative body unless a later effective date for changes is imposed for California Prop 65 or EU Allergens.


What’s Next?

With the passage of The Cleaning Product Right to Know Act, understanding implemen­tation requirements and coordinating throughout the supply chain levels are top priorities. Questions will certainly arise over whether certain products are within the scope of SB 258, whether a particular fragrance ingredient is impacted and how cleaning product manufacturers will interact with their fragrance suppliers, retailers and consumers. IFRANA is committed to building trust and serving as a resource. By engaging all stakeholders, meaningful fragrance ingredient communication can be achieved.

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