The New York Department of Environmental Conservation (NYDEC) is debating its next step after what would have been the nation’s first mandatory disclosure program for cleaning product ingredients was invalidated by a state court judge on August 27th. In the ruling, the court found that the Household Cleaning Product Disclosure Program was a “rule” — and not merely “guidance” as NYDEC argued — that was adopted in violation of the rulemaking procedures required under the State Administrative Procedure Act (SAPA).
Here, the Court finds that the Disclosure Program, which dictates a new set of rules governing the types of ingredients that must be disclosed, the manner of their disclosure, and imposes a new requirement mandating that each disclosure be accompanied by a certification of its completeness and accuracy, constitutes a clear rule and not a mere interpretative statement without any legal or binding effect.
The clarity of the court’s ruling should not be surprising, and echoes repeated comments and complaints made by industry stakeholders to NYDEC during the rulemaking process.
While NYDEC has the option to appeal the ruling, it would seem that the most appropriate course of action would be for NYDEC to undertake a real rulemaking process and engage with stakeholders to craft a more workable program. The failure of NYDEC to listen to stakeholder input resulted in substantial concerns about the Disclosure Program, including the lack of consistency with the California Cleaning Product Right to Know Act (which requires the first set of on-line disclosures by January 1, 2020).
Further information on the New York Disclosure Program can be found at www.dec.ny.gov/chemical/109021.html.