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

Channeling Lynyrd Skynyrd’s classic 1977 song, “That Smell,” on January 1, 2022, California Senate Bill 312 (SB 312), now known as the Cosmetic Fragrance and Flavor Ingredient Right to Know Act of 2020 (“CFFIRKA”), entered into effect.1 CFFIRKA requires companies that sell cosmetic or personal care products containing reportable fragrances and flavors included in CFFIRKA to report this 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.

Highlights of the new law

  • Declarable fragrance and flavor definitions focus on the “intended purpose” of the ingredient.
    • A fragrance ingredient is an intentionally added substance or complex mixture of chemical aromas, natural essential oils, and other functional ingredients whose purpose is to impart a scent or scent, or to counteract an odor.
    • A flavoring ingredient is an intentionally added substance or complex mixture of chemical flavorings, chemical flavorings, natural essential oils and other functional ingredients whose purpose is to impart flavor or taste, or to counteract a flavor or a taste.2
  • The CSCP will identify whether an ingredient is a fragrance ingredient or a flavor ingredient.3 All ingredients appearing on the list of ingredients to be declared must be reported to the CSCP, whatever the concentration in the product. This reporting obligation applies to all products containing declarable ingredients sold in California after January 1, 2022, regardless of the date of manufacture. When any of the 23 designated lists that make up the Declarable Ingredient Lists are updated, companies must disclose the ingredient no later than six months after the adoption date or effective date of the revised list, whichever is later.4
  • A fragrance ingredient or flavor ingredient that is 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 disclose the following:
    • ingredients not included in designated lists;
    • the weight or quantity of an ingredient; Where
    • how a product is formulated.5
  • A subset of CFFIRKA declarable ingredients, called “fragrance allergens”, have different reporting requirements than the fragrance or flavor ingredients above. Fragrance allergens, unlike other fragrance ingredients, must be reported to the CSCP regardless of their destination in the product (i.e., companies also only have to report fragrance allergens 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 leave-on cosmetic product at a concentration equal to or greater than 0.001% (10 parts per million).6 Perfume allergenic ingredients are clearly distinguished in the list of ingredients to be declared by the CSCP. A review of the CSCP’s product database shows commonly reported fragrance allergens, including:
    • cinnamal;
    • hydroxycitronellal; and
    • limonene.

The CSCP product database is publicly available and displays 712 companies declaring over 90,000 products.7

How to report

Cosmetic companies must report electronically, using the California Safe Cosmetics reporting portal.8

  1. Create an account for the California Safe Cosmetics reporting portal.9
  2. Companies may find it helpful to compile the following information before logging into the California Safe Cosmetics Reporting Portal to report products:
    • Company Name
    • Mark
    • Product name, exactly as it appears on the product label or packaging
    • Variant name (e.g. color, smell, 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 with its brand name, product name and any applicable variant name. Acceptable file types include .png, .jpg, .jpeg, and .webp.
    • Intended market for the product (e.g. professional use only, general public, children)
    • Intended product application area (e.g. face, hands)
    • Physical form of product (e.g. cream, powder, spray)
    • List of product manufacturers
    • Product formulation information provided by manufacturer(s) and supplier(s) necessary to identify all reportable ingredients
  3. Companies have six months to be complied with from the date of adoption or from the date of entry into force, when the list of ingredients to be declared includes an ingredient in the company’s product. Therefore, currently listed declarable ingredients must be declared by July 1, 2023.

Frequently Asked Questionsten

  • Who is required to declare under the CFFIRKA?
    • Companies are required to report products to the CSCP if they sell cosmetic and personal care products in California that contain fragrances or flavors, or both, listed on one or more of the 23 lists designated in Section 111792.6 of the Code of health and safety.
    • The company whose name appears on the product label (per FDA cosmetic label requirements) is responsible for reporting products to the CSCP and obtaining ingredient information from manufacturers and suppliers. suppliers needed to complete the report. Consultants may report on behalf of the responsible company, but the CSCP will first verify that the consultants are legitimately affiliated with the company.
  • What is the deadline for companies to comply with the CFFIRKA?
    • Businesses are expected to begin the reporting process by January 1, 2022. The reporting portal is now ready for CFFIRKA reporting. As indicated, companies have six months to comply from January 1, 2022.
  • Does the CFFIRKA oblige companies to change product labels?
    • There is no obligation under CFFIRKA to make changes to product labels.
  • CFFIRKA obliges companies to declare the UPC for each Should companies declare multiple UPCs associated with a larger kit or collection that has its own UPC?
    • All UPCs associated with a product containing Declarable Ingredients must be declared, regardless of how it is packaged. If a product containing a declarable ingredient is part of a larger kit or collection, the company must report the UPC of the kit and the UPC of any product also sold separately that contains the declarable ingredient.
  • CSCP will answer questions and provide clarification regarding reporting requirements via email to [email protected]

AGG comments

  • The company whose name appears on the product label must obtain the information necessary for the declaration from all suppliers in the distribution chain.
  • Neither the CSCP website nor CFFIRKA identifies penalties for non-compliance.
  • Companies selling products in California must review their products and ingredients to ensure they comply with the new law.
  • Remember: the law came into force on January 1, 2022 and the deadline for declaration of conformity is in June.

[1] CFFIRKA can be found under 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 March 16, 2022).

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

[3] ID.

[4] The CSCP list of ingredients to be declared 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 Declaration Portal available at https://cscpsubmit.cdph.ca.gov/submission/login. Instructions detailing the submission process are available at https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/OHB/CSCP/Pages/Cosmetics-Companies.aspx (last accessed March 16, 2022).

[9] Instructions for use 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 (last accessed March 16, 2022).

Ryan H. Bowman