Warning: This Product May Cause Cancer

The so-called “Consumer Right to Know Act” would authorize the New York Department of Health and the New York Department of State to develop a list of more than 1,000 substances that, if found in a product, would require that the product be labeled to warn consumers of potential exposure to carcinogens. The law would also require manufacturers to publish ingredient information on their websites. No word yet regarding potential penalties for a company’s failure to comply, should the proposed legislation become law.

In a recent video announcing the proposal on YouTube, Governor Cuomo said, “Consumers have the right to know what is in the products they use, and requiring labeling on designated products will provide consumers with the information they deserve.”

Sound slightly familiar? The law would be similar to the California Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65, which was enacted in November 1986. Today, Proposition 65 affects any business that sells a product that could potentially wind up in the hands of a California consumer—no matter where they are in the supply chain. This means that many businesses have had to change how they label consumer products or even reformulate to avoid lawsuits.

This would not be the first time New York has followed in California’s footsteps when it comes to consumer protection legislation involving products. In October 2017, California adopted the Cleaning Product Right to Know Act which requires manufacturers of cleaning products to disclose certain chemical ingredients on the product label and on the manufacturer’s website. Shortly thereafter, the New York Department of Environmental Conservation announced a new product and ingredient disclosure requirement applicable to manufacturers of household cleaning products sold in New York.

Savvy businesses that place products into the stream of commerce that may end up in New York can take the following steps now to prepare for the proposed legislation:

1. Determine what chemicals are used throughout the manufacturing process and in the end product sold to the consumer.
2. Develop indemnity agreements and disclosure policies with manufacturers within the supply chain.
3. Consider whether products could be reformulated.
4. Analyze all costs associated with warning labels, including harm to business revenue.

Arent Fox LLP has extensive experience counseling clients in Proposition 65 matters, from notice of violation through all phases of litigation. We also provide Proposition 65 training seminars for clients with practical tips on effective compliance. This Alert is meant to highlight the potential impact of the proposed New York legislation that is similar to California’s Proposition 65. Arent Fox’s  Prop 65 group will continue to analyze any forthcoming legislation in this area and will publish future Alerts with more details on best practices to ensure compliance and decrease the likelihood of litigation.