What is that smell? California Safe Cosmetics Program Wants To Know | Arnall Golden Gregory LLP

Channeling Lynyrd Skynyrd’s 1977 classic song, “That Smell”, on January 1, 2022, California Senate Bill 312 (SB 312), now known as the 2020 Cosmetic Fragrance and Flavor Ingredient Right to Know Act (“CFFIRKA”), effect was approved.1 CFFIRKA requires companies that sell cosmetic or personal care products that contain reportable fragrances and aromatic ingredients included in CFFIRKA to report such information to the California Safe Cosmetics Program (“CSCP”), which is part of the California Department of Public Health, Division of Control of Environmental and Occupational Diseases.

The salient points of the new law

  • Reportable fragrance and flavor definitions focus on the ingredient’s “intended purpose”.
    • A fragrance ingredient is any intentionally added substance or a complex blend of aromatic chemicals, natural essential oils, and other functional ingredients or ingredients whose purpose is to impart a smell or scent or to counteract an odor.
    • An aromatic ingredient is any intentionally added substance or complex mixture of aromatic chemicals, aromatic chemicals, natural essential oils, and other functional ingredients or ingredients whose purpose is to impart a flavor or taste or to counteract a flavor or taste.2
  • CSCP will identify whether an ingredient is a scented ingredient or an aromatic ingredient.3 All ingredients appearing in the list of reportable ingredients must be reported to the CSCP, regardless of the concentration in the product. This reporting obligation applies to everyone products with reportable ingredients sold in California after January 1, 2022, regardless of the production date. When one of the 23 designated lists that make up the reportable ingredient lists is updated, companies must disclose the ingredient no later than six months from the date of adoption of the revised list or from the effective date, whichever is which is later.4
  • A fragrance ingredient or aromatic ingredient that constitutes a trade secret is not subject to disclosure under the California Public Records Act. Note: To protect trade secrets, the law does not require companies to report the following:
    • ingredients not included in the designated lists;
    • the weight or quantity of an ingredient; or
    • how a product is formulated.5
  • A subset of CFFIRKA reportable ingredients, called “fragrance allergens”, have different reporting requirements than the fragrance or flavored ingredients above. Fragrance allergens, unlike other fragrance ingredients, must be reported to the CSCP, regardless of their destination in the product (i.e., they must be reported even if they are not used to impart scent or counter odor). In addition, companies should report fragrance allergens only if they are present in a rinse-off cosmetic product at a concentration equal to or greater than 0.01% (100 parts per million) or in a non-rinse cosmetic product at a concentration equal to or greater than 0.001% (10 parts per million).6 Allergenic ingredients in fragrances are clearly distinguished in the CSCP Reportable Ingredient List. A review of the CSCP product database shows commonly reported fragrance allergens, including:
    • cinnamon;
    • hydroxycitronellal; And
    • limonene.

The CSCP product database is available for public viewing and shows 712 companies reporting more than 90,000 products.7

How to report

Cosmetic companies should file an electronic report, using the California Safe Cosmetics Reporting Portal.8

  1. Create an account for the California Safe Cosmetics Reporting Portal.9
  2. Businesses may find it helpful to fill out the following information before accessing the California Safe Cosmetics Reporting Portal to report products:
    • Company Name
    • Brand name
    • Product name, exactly as it appears on the product label or packaging
    • Variation name (e.g. color, scent, flavor or SPF)
    • Company internal product ID (optional)
    • Universal Product Codes (“UPC”): This is the 12-digit barcode number
    • Product website address
    • Product Marketing Photo: Any photo that shows the product in its entirety along with the brand name, product name, and any applicable name variations. Acceptable file types include .png, .jpg, .jpeg, and .webp.
    • Target market of the product (e.g. professional use only, general consumers, children)
    • Intended area of ​​application of the product (e.g. face, hands)
    • Physical form of product (eg, cream, powder, spray)
    • List of product manufacturers
    • Product formulation information from manufacturers and suppliers required to identify all reportable ingredients
  3. Companies have six months comply from the date of adoption or the date of entry into force, if the list of reportable ingredients includes an ingredient in the company’s product. Therefore, currently listed reportable ingredients must be reported by July 1, 2023.

Frequent questions10

  • Who is required to report to CFFIRKA?
    • Companies are required to report products to the CSCP if they sell cosmetics and personal care products in California that contain scented or aromatic ingredients, or both, included in one or more of the 23 designated lists in section 111792.6 of the Health and Safety Code.
    • The company whose name appears on the product label (per FDA cosmetic label requirements) is responsible for reporting products to the CSCP and obtaining the ingredient information from manufacturers and suppliers necessary to make the report. Consultants may report on behalf of the responsible company, but CSCP will first verify that the consultants are legitimately affiliated with the company.
  • What is the deadline for companies to comply with the CFFIRKA?
    • Companies should start the reporting process by January 1, 2022. The Reporting Portal is now ready for CFFIRKA reporting. As noted, companies have six months to comply starting January 1, 2022.
  • Does CFFIRKA require companies to make changes to product labels?
    • There is no obligation under the CFFIRKA to make changes to product labels.
  • CFFIRKA requires companies to report UPC for every Do businesses need to report multiple UPCs associated with a larger kit or collection that has their own UPC?
    • All UPCs associated with a product containing reportable ingredients must be reported, regardless of how it is packaged. If a product containing a notifiable ingredient is part of a kit or larger collection, the company must report the UPC of the kit and the UPC of any product also sold separately and containing the notifiable ingredient.
  • CSCP will respond to questions and provide clarification regarding reporting requirements via email at SafeCosmetics@cdph.ca.gov.

Comments AGG

  • The company whose name appears on the product label must obtain the necessary information to report from all suppliers in the supply chain.
  • Neither the CSCP nor CFFIRKA website identify penalties for non-compliance.
  • Companies that sell products in California should review their products and ingredients to ensure compliance with the new law.
  • Remember: the law entered into force on 1 January 2022 and the deadline for reporting compliance is June.

[1] CFFIRKA can be found in Section 111792.6 of the California Health and Safety Code, viewable at https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=HSC&division=104.&title=&part=5. & chapter = 7. & article = 3.5. (last accessed 16 March 2022).

[2] Cal. Health and Safety Code § 111792.6.

[3] ID.

[4] The CSCP Reportable Ingredient List is available at https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/OHB/CSCP/Pages/SB312.aspx (last accessed 10 March 2022).

[5] Cal. Health and Safety Code § 111792.6 (6) (b) (2) (A).

[6] Cal. Health and Safety Code § 111792.6 (6) (b) (1) (B).

[7] California Safe Cosmetics Program Product Database available at https://cscpsearch.cdph.ca.gov/search/publicsearch (last accessed March 10, 2022).

[8] California Safe Cosmetics Reporting Portal available at https://cscpsubmit.cdph.ca.gov/submission/login. Detailed instructions on the submission process can be found at https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/OHB/CSCP/Pages/Cosmetics-Companies.aspx (last accessed March 16, 2022).

[9] Instructions available at https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/OHB/CSCP/Pages/CreateAccount.aspx (last accessed March 16, 2022).

[10] CFFIRKA FAQ, available at https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/OHB/CSCP/Pages/SB312.aspx (last accessed March 16, 2022).

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