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New York’s highest-ranking court has deemed the state’s Household Cleansing Product Information Disclosure Program (Disclosure Program) invalid. The program was scheduled to be enforced on 1 January 2020, but the New York State Supreme Court’s recent ruling may have pushed back this deadline further. New York’s Department of Environmental Conservation (DEC) has yet to comment on what actions it will take subsequent to the court’s decision.
Verisk 3E Review
On 27 August 2019 the New York Supreme Court decided that the DEC failed to adhere to the notice-and-comment requirements of the State Administrative Procedure Act (SAPA). The court determined that the Disclosure Program substantially created standards that could fundamentally change the business practices of manufacturers of household cleaning products. Thus, the DEC was required to comply with rulemaking procedural requirements prior to implementing the disclosure program.
In October 2018 trade associations representing cleaning products manufacturers filed a suit against the DEC to invalidate the disclosure program. The petitioners claimed the department acted contrary to the public interest when it failed to provide sufficient notice-and-comment on the rules that originated from the program. Thus, the petitioners claimed the department failed to follow the proper procedure to promulgate the disclosure program, which the court clarified constituted a "rule" due to the nature of the requirements. Further, the petitioners requested the disclosure program be annulled and remitted back to the DEC with the directive to comply with SAPA.
The two trade associations that brought forward the suit were the Household and Commercial Cleaning Products Association (HCPA) and the American Cleaning Institute (ACI). The HCPA collaborates with major retailers on issues related to chemical safety and labeling and ingredient communication, whereas the ACI drives initiatives that allow access and understanding of ingredients used in household cleaning products.
In a joint statement, the HCPA and ACI said that they "hope this decision will prompt the New York State Department of Environmental Conservation (NYSDEC) to work with us on a comprehensive, collaborative and transparent policy that is in alignment with other states, such as California."
Verisk 3E Analysis
Businesses may expect the DEC to either appeal the court's decision or properly adhere to rulemaking procedures that effectively authorize the disclosure program.
Please be advised that the court's decision may create some uncertainties regarding compliance. If so, please consult your legal counsel and/or contact the DEC to determine the best mode of action to suit your business needs.
Lastly, the court’s decision is available upon request. If interested, please email 3EMonitorSupport@verisk3e.com to obtain a copy of the document.