New York, California, and Cleaning Supplies: The two states are battling over which will be the de facto U.S. regulator.

• Author: Brannon, Ike

Partisan gridlock may have made major legislation difficult to advance at the federal level in the last decade, but most states have not suffered such stasis. As a result, many of them have begun tackling policy issues beyond what previously had been considered the proper realm of the states, including some dimensions of environmental and consumer protection.

California and New York have been among the most aggressive in pursuing a robust regulatory agenda in these areas. Their progressive voters are largely supportive of such work, and their large populations make it more practical for them to pursue such actions than, say, Wyoming or South Dakota, where the resulting administrative costs would be spread across many fewer taxpayers.

Regulatory actions by populous states can have effects beyond their borders, establishing de facto national regulatory standards. By dint of their size, a standard set by California or New York can prompt a manufacturer to follow that standard for its operations nationwide as a cost-expedient strategy. As a result, policy debates over a large state's regulatory actions can be consequential not just for its own citizens but for the entire country.

Such a scenario describes efforts by California and New York to regulate chemicals in cleaning supplies.

In 2017, California Gov. Jerry Brown signed into law the Cleaning Product Right to Know Act. The law requires manufacturers of cleaning products to disclose certain chemical ingredients on the product label and on the manufacturer's website. The legislation was the product of a years-long effort that engaged both consumer groups and the affected industries to accomplish the intended goals in a way that minimizes compliance and transition costs while achieving desired consumer protections. After the law's passage, the industry effectively treated the state's standards as if they were the national standards and prepared to produce all products for the U.S. market in accordance with California's disclosure specifications.

However, as California's law was nearing completion, New York announced that it would consider implementing its own chemical disclosure standards for cleaning products. After myriad delays and a lawsuit that invalidated its initial effort, the state has announced that it intends to publish a proposed rule in the near future.

This development is important because its proposed rule is significantly different from California's. New York's preliminary list of chemicals to be disclosed contains hundreds that do not appear in California's standards, and New York's reporting thresholds differ significantly from California's standards for several important chemicals, most notably dioxane. Some of New York's disclosure thresholds for chemicals on its preliminary list appear to exceed what science is currently capable of detecting. It may require tens of millions of dollars of investment by the industry to achieve those levels of discernment and necessitate higher ongoing costs to ensure that the products continue to meet the disclosure standards.

What's more, New York has offered little evidence that the trace amounts of dioxane, as well as the additional ingredients on New York's list, have any deleterious effects on human or animal health at the mandated reporting levels. The incremental benefits from New York's proposed cleaning product disclosure standards appear to be slight or nonexistent, yet the standards will significantly increase producers' compliance costs as they carry our product testing and make required disclosures.

The California standards--which fully went into effect in January--should remain as the de facto national standards unless New York can articulate how its proposed standards would benefit the state's consumers in excess of the industry's compliance costs.

CALIFORNIA'S CLEANING PRODUCT RIGHT TO KNOW ACT

With a population of 40 million and a gross state product exceeding $3 trillion, California would be the world's fifth largest economy on its own, just behind Germany but ahead of India, France, and every other European Union country. Its population and economic heft mean that when it creates a new regulatory standard, manufacturers often conclude that it is not cost-effective to make one product for California consumers and another for the rest of the country. As a result, the manufacturers often elect to conform their products nationwide to California's standards rather than meet two distinct standards.

For instance, in the early 2000s California's regulatory standards on motorcycle emissions and noise became the effective national standards. Also, its refusal to conform to the Trump administration's attempts to reduce scheduled future Corporate Average Fuel Economy increases for automobiles and preclude California from negotiating its own distinct standards garnered support from car makers wary of whipsawing and distinct standards across the nation.

With the passage of its Cleaning...