On October 11, 2019, New York Governor Andrew M. Cuomo (D) signed legislation (S.2387-B/A.164-B) requiring menstrual product packages or boxes sold in New York State to contain a “plain and conspicuous printed list of all the ingredients in the products.” According to Cuomo’s October 11, 2019, press release, the new law makes New York the first state to require ingredient labels on menstrual products. The legislation will take effect in 180 days, and product manufacturers will have 18 months to develop new packaging or labels with the ingredients.

The bill amends the General Business Law by adding a new section, Section 399-aaaa. Ingredient is defined as “an intentionally added substance present in the menstrual product.” Menstrual products are “products used for the purpose of catching menstruation and vaginal discharge, including but not limited to tampons, pads, and menstrual cups. These products may be either disposable or reusable.” The “plain and conspicuous” printed list of ingredients must list the ingredients in order of predominance. The list must be printed on the package or affixed thereto. Violations subject manufacturers to a civil penalty of one (1) percent of the manufacturer’s total annual in-state sales not to exceed $1,000 per package or box.

Commentary

Unlike the New York State Department of Environmental Conservation’s (NYSDEC) Household Cleansing Product Information Disclosure Program (Disclosure Program), which NYSDEC attempted to implement by issuing guidance, the labeling requirement for ingredients in menstrual products has been enacted by amending the New York General Business Law. As reported in our August 30, 2019, memorandum, the State of New York Supreme Court invalidated NYSDEC’s Disclosure Program on the basis that the Program was a “rule” for which NYSDEC did not comply with its State Administrative Procedure Act (SAPA) rulemaking procedures.

Despite this labeling requirement being enacted by law instead of guidance, there are potentially significant issues that will need to be addressed. The law itself is exceedingly short, leaving open questions, including but not limited to, determining those entities responsible for product labeling and confirming whether ingredient identities can be protected as confidential. While a memorandum in support of this legislation indicates that this law is intended to inform women of “toxic and allergenic chemicals” that may be included in menstrual products, the requirement to disclose only intentionally added substances seemingly limits the ingredient disclosure requirement. In addition, as the Disclosure Program demonstrated previously, terms such as “plain and conspicuous” and “listed in order of predominance” are amenable to interpretation and require guidance and stakeholder engagement to effectuate legislative intent.

This law is arguably related to Governor Cuomo’s January 21, 2019, proposal intended to protect New Yorkers from unknown exposure to toxic chemicals. According to Governor Cuomo’s press release, the Consumer Right to Know Act would authorize NYSDEC, in consultation with the New York State Department of Health (NYSDOH) and the New York State Department of State (NYSDOS), to develop regulations establishing on-package labeling requirements for designated products indicating the presence of potentially hazardous chemicals, including carcinogens. When state legislators sent the Governor a 2020 budget package in April 2019, they omitted the proposal, however. More information on the proposal is available in our January 30, 2019, memorandum, “New York Governor Announces Proposed Consumer Right to Know Act.”