California often leads the way in passing environmental and consumer protection laws
Photo illustration by Sara Wadford/ABA Journal
Consumer activists have been trying for years to get potentially harmful chemicals out of personal care products—such as shampoo and deodorant—or at least get manufacturers to disclose all their ingredients.
They’ll get part of their wish in 2022, when the new Cosmetic Fragrance and Flavor Ingredient Right to Know Act takes effect in California. Companies that under the California Safe Cosmetics Act of 2005 already must disclose to the state chemicals implicated as potential carcinogens or reproductive hazards will now have to reveal an expanded list of chemicals in a public database run by the California Department of Public Health. Consumers will be told exactly what’s in vague “fragrance” or “flavor” ingredients listed on product labels.
And in 2025, the new Toxic-Free Cosmetics Act will take effect in California, making it illegal to sell cosmetics containing 24 chemicals already banned in the European Union, including formaldehyde, polyfluoroalkyl substances, and certain parabens and phthalates.
The legislation had the backing of the Personal Care Products Council, the leading U.S. trade association for such companies.
“It was a large-scale effort,” says Susan Little, senior advocate for California government affairs for the nonprofit Environmental Working Group.
Both new laws will not only affect residents of the Golden State. Consumers from coast to coast are able to access the database.
And once the chemicals ban takes effect, it’s expected that most manufacturers will remove them nationwide rather than create California-only formulations.
The laws are among a slew of measures passed in California in recent years in hopes of expanding consumer or environmental protections further afield.
Whether it’s product ingredients or data privacy or pollution prevention, California is frequently where such laws start. That’s partly due to the state’s size, with a population of almost 40 million and a gross domestic product of about $3.2 trillion—an economy that would rival those of many countries.
It’s also one of only 10 states with a full-time legislature, giving its sizable legislative staffs time to dig into issues.
The coming change in cosmetics laws there represents a major change from the federal Food, Drug and Cosmetic Act of 1938.
Over the past 83 years, the Food and Drug Administration has prohibited or restricted only 11 cosmetic ingredients for safety reasons.
“It’s just a huge area of consumer law and consumer protection policy that is just very underregulated,” Little says. “We’ll have to wait and see how it all pans out and whether products with [for example] formaldehyde will be sold in Maine. But we’re anticipating the industry will conform to the California standard.”
After California’s 2005 law was passed, the state of Washington in 2008 required manufacturers to disclose “chemicals of high concern” in children’s products, and Minnesota banned formaldehyde from similar children’s items in 2013.
Claudia Deeg, a public health associate at the California Public Interest Research Group, says she hopes the latest California cosmetics laws will have an even wider impact. “Our hope is that … manufacturers are not going to want to make a whole separate slate of products,” she says.
Data privacy
California’s recent moves in another area—the realm of data privacy, a hot topic in the technology-heavy state—are helping drive the national discussion around Big Tech.
The state’s first-in-the-nation broad data privacy law, the California Consumer Privacy Act of 2018, took effect last year and allows state residents to find out what type of data companies are collecting about them, request that it not be sold to third parties and demand that their data be deleted.
California voters last fall strengthened the CCPA by passing Proposition 24 and creating the California Privacy Rights Act of 2020, which takes effect in 2023. The CPRA creates a new California Privacy Protection Agency to enforce privacy rules, with stricter penalties for violators.
Though some activists felt California should have gone further and passed requirements that consumers must give clear, affirmative consent to have their personal data collected and processed—as the EU does with its General Data Protection Regulation, or GDPR—others see California’s moves as a step in the right direction.
Many observers expect that someday, a federal data privacy standard will be enacted—which is why there’s a scramble now to lay down standards. This year, Virginia passed its own Consumer Data Protection Act, which drew criticism from some consumer groups for having weaker enforcement provisions than California’s law and for allowing companies to penalize customers who wish to avoid targeted advertising.
Jennifer King, the privacy and data policy fellow at the Stanford Institute for Human-Centered Artificial Intelligence—and formerly the director of consumer privacy at the Center for Internet and Society at Stanford Law School—says there’s a bigger battle ahead to educate consumers on how their information is used. The California law requires consumers to “opt-out” of data-sharing, but many don’t want that hassle, she says. “As long as we are passing laws that require you to do all the work, it’s pretty hard to have a substantial impact,” King says.
In that regard, the United States is still catching up to Europe, which has more robust privacy laws underpinned by the European Convention on Human Rights and its explicit reference to privacy, King says. The U.S. Constitution does not mention privacy, though several key U.S. Supreme Court decisions have affirmed U.S. citizens’ privacy rights in health care, birth control and other matters.
Maureen Mahoney, a policy analyst at Consumer Reports’ San Francisco office, says the California privacy laws still represent progress. She hopes new tools such as a browser signal developed by GlobalPrivacyControl.org will eventually make it easier for consumers to opt-out all at once. Users who download and enable the tool can automatically convey their privacy preferences to websites that they visit. “We think the CCPA should be a baseline or certainly a standard for other states,” she says.
Environmental laws
Similarly, California has led the way with environmental laws. The state was alone in getting a provision written into the 1970 federal Clean Air Act to enact tougher automobile emissions rules.
Even though the federal waiver was for California, it had the effect of lowering emissions elsewhere, as more than a dozen states opted to use California’s standards.
That effort took a hit in 2019. With then-President Donald Trump’s administration seeking to gut emissions rules, automakers pressured California to agree to a deal: They’d reduce emissions by more than what the Trump administration wanted but less than what was required by rules from President Barack Obama’s administration. The Trump administration ended up revoking California’s waiver, although President Joe Biden’s administration says it will reverse that decision. Biden, who has pledged to cut U.S. greenhouse gas emissions in half by 2030, has ordered a review of federal fuel-efficiency standards.
David Friedman, vice president of advocacy at Consumer Reports, says the automakers’ actions in California have led to speculation about whether their deal represents the floor or the ceiling for future national emissions rules. “It’s the classic ‘the devil is in the details.’ Or the pollution is in the details,” he says.
Even so, there’s no denying that California has pushed the rest of the country forward for decades. “California has led the nation when it comes to cleaner cars,” he says. “Overall, it is an amazingly positive history.”
Also, California’s Global Warming Solutions Act of 2006 spawned a cap-and-trade program for major greenhouse gas polluters, such as refineries, power plants and industrial facilities. The state now earmarks some of the revenue from cap and trade for disadvantaged communities.
“That was a really unique thing that we now see replicated elsewhere,” says Katelyn Roedner Sutter, manager for U.S. climate initiatives at the nonprofit Environmental Defense Fund. Eleven other states have since adopted market-based approaches to reducing greenhouse gas emissions.
Rosemary Shahan, president of the Sacramento, California-based nonprofit Consumers for Auto Reliability and Safety, has seen the power of California firsthand. Shahan started advocating for consumers’ rights in 1979, when she began picketing a car dealer and pushing for a state lemon law. Connecticut enacted its lemon law just ahead of California’s—by one month—in 1982, but her years of work prompted other states to pass similar laws stating consumers are entitled to a full refund if a defective new car can’t be repaired in four tries.
Shahan believes laws passed in California have a good chance of making an impact elsewhere. “It makes me feel an obligation to really make things happen,” she says. “You can help a lot of people in this state and potentially in other states as well.”
This story was originally published in the June/July 2021 issue of the ABA Journal under the headline: “Golden State Rules: California often leads the way in passing environmental and consumer protection laws.”
