What is that smell? California Safe Cosmetics Program wants to know | Arnall Golden Gregory LLP

Adapted from Lynyrd Skynyrd’s 1977 classic “That Smell,” the California Senate passed Bill 312 (SB 312) on January 1, 2022, now known as the Right-to-Know Cosmetic Flavors and Fragrances Act 2020 (“CFFIRKA”) known effect.1 CFFIRKA requires companies that sell cosmetic or personal care products containing reportable fragrances and flavorings contained in CFFIRKA to report such information to the California Safe Cosmetics Program (“CSCP”), part of the California Department of Public Health , Division of is Control of Environmental and Occupational Diseases.

Highlights of the new law

  • The reportable fragrance and flavor definitions focus on the “intended purpose” of the ingredient.
    • A fragrance ingredient is any intentionally added substance or complex mixture of aromachemicals, natural essential oils, and other functional ingredients or ingredients whose purpose is to impart an odor or fragrance, or to counteract an odor.
    • A flavoring ingredient is any intentionally added substance or complex mixture of aromachemicals, aromachemicals, natural essential oils, and other functional ingredients or ingredients whose purpose is to impart or counteract an aroma or flavor.2
  • CSCP will determine if an ingredient is a fragrance or a flavor.3 All ingredients included on the reportable ingredient list must be reported to the CSCP, independent of the concentration in the product. This reporting requirement applies to Everyone Products with reportable ingredients sold in California after January 1, 2022, regardless of date of manufacture. If any of the 23 designated lists that comprise the reportable ingredient lists are updated, companies must disclose the ingredients no later than six months from the date of adoption or effective date of the revised list, whichever is later.4
  • A fragrance or flavor ingredient that is a trade secret is not subject to disclosure under the California Public Records Act. Note: To protect trade secrets, companies are not legally required to report:
    • Ingredients not included in the provided lists;
    • the weight or quantity of an ingredient; or
    • how a product is formulated.5
  • A subset of reportable CFFIRKA ingredients, referred to as “fragrance allergens,” have different reporting requirements than the fragrance or flavor ingredients mentioned above. Fragrance allergens, unlike other fragrance ingredients, must be reported to the CSCP regardless of their intended purpose in the product (ie they must be reported even if they are not used to impart fragrance or counteract odour). Additionally, companies are only required to report fragrance allergens if they are present in a rinse-off cosmetic product at a level of 0.01% or greater (100 parts per million) or in a leave-on cosmetic product at a level of 0.001 or greater are % (10 parts per million).6 Allergenic ingredients of fragrances are clearly distinguished in the CSCP list of reportable ingredients. A review of the CSCP product database shows commonly reported fragrance allergens including:
    • Cinammon;
    • hydroxycitronellal; and
    • limes.

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

How to sign up

Cosmetics companies should report their reports electronically through the California Safe Cosmetics Reporting Portal.8th

  1. Create an account for the California Safe Cosmetics Reporting Portal.9
  2. Businesses may find it helpful to compile the following information before registering with the California Safe Cosmetics Reporting Portal to report products:
    • Name of the company
    • 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 showing the product in its entirety along with its brand name, product name and any applicable variant names. Acceptable file types are .png, .jpg, .jpeg, and .webp.
    • Target market of the product (e.g. professional use only, general consumers, children)
    • Intended use of the product (e.g. face, hands)
    • Physical form of the product (e.g. cream, powder, spray)
    • List of manufacturers of the product
    • Product formulation information from manufacturer(s) and supplier(s) required to identify all reportable ingredients
  3. have company six months to be complied with from the Adoption Date or the Effective Date if the reportable ingredient list includes an ingredient in the company’s product. Therefore, currently listed reportable ingredients must be reported by July 1, 2023.

frequently asked Questions10

  • Who is required to report under CFFIRKA?
    • Businesses are required to report products to CSCP when selling cosmetic and personal care products in California that contain fragrances, flavorings, or both, that are on one or more of the 23 designated lists in Health and Safety Code Section 111792.6.
    • The company whose name appears on the product label (per FDA cosmetic label requirements) is responsible for reporting products to CSCP and obtaining ingredient information from manufacturers and suppliers necessary for the preparation of the report. Consultants may report on behalf of the responsible company, but CSCP first verifies that consultants are legitimately affiliated with the company.
  • When is the deadline for companies to comply with CFFIRKA?
    • Companies are expected to start the process of reporting by January 1, 2022. The reporting portal is now ready for CFFIRKA reporting. As noted Businesses have six months from January 1, 2022 to do so.
  • Does CFFIRKA require companies to make changes to product labels?
    • According to CFFIRKA, there is no need to make changes to product labels.
  • CFFIRKA requires companies to report the UPC for each Do companies need to report multiple UPCs associated with a larger kit or collection that has its 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 reportable ingredient is part of a larger kit or collection, the business must report the UPC of the kit and the UPC of each product that is also sold separately and contains the reportable ingredient.
  • CSCP will answer questions and provide clarifications on reporting requirements via email to [email protected]

AGG observations

  • The company whose name appears on the product label must collect the information required for the notification from all suppliers in the distribution chain.
  • Neither the CSCP website nor CFFIRKA identify penalties for non-compliance.
  • Companies selling products in California should review their products and ingredients to ensure compliance with the new law.
  • Remember, the law went into effect on January 1, 2022 and the deadline for reporting compliance is June.

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

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

[3] ID.

[4] The CSCP list of reportable ingredients is available at https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/OHB/CSCP/Pages/SB312.aspx (last accessed March 10, 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. For instructions on the submission process, see 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] Frequently Asked Questions about CFFIRKA, available at https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/OHB/CSCP/Pages/SB312.aspx (accessed March 16, 2022).

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