New York Law Journal: Environmental Groups Denied Right to Any Dirt on Detergent Ingredients

A band of environmental advocacy groups cannot force four manufacturers, including consumer products giant Procter & Gamble, to disclose the ingredients used in their household cleaning products, a Manhattan judge has ruled.

Women's Voices for the Earth Inc. and five other not-for-profits accused the manufacturers of "keeping the public in the dark about potential threats to their health and the environment" by allegedly failing to file legally required disclosure reports with the New York Department of Environmental Conservation (DEC).

However, Supreme Court Justice Richard F. Braun last week found that the groups had no standing to sue, since their members had "suffered injuries no different than the public at large."

"The rights of the general public should be protected by officials of the executive branch," the judge wrote in Women's Voices for the Earth Inc. v. The Procter & Gamble Company, 102035/09. His ruling dismissed the Article 78 petition against the Procter & Gamble Co., Church & Dwight Co. Inc., Reckitt Benckiser Inc. and Colgate-Palmolive Inc.

In 2008, Women's Voices, the American Lung Association, the Sierra Club, Riverkeeper Inc., Environmental Advocates of New York Inc., and the New York Public Interest Research Group Inc. notified 14 major cleaning product manufacturers of their alleged disclosure obligations under §659.6 of the New York Codes, Rules and Regulations.

Under the regulation, manufacturers of household cleaning products distributed or sold in New York state "shall furnish to the commissioner [of the New York State Department of Environmental Conservation] ... information regarding such products as the commissioner may require," including a list of the product's ingredients, except those present in trace quantities, and "investigations and research performed by or for the manufacturer concerning the effects on human health and the environment."

The regulations, which are promulgated under Article 35 of the Environmental Conservation Law, state that the manufacturers "shall furnish such information semiannually or at such other times as may be required by the commissioner."

Ten of the manufacturers either complied with the advocacy groups' disclosure request or agreed to work with them to provide better disclosure, according to Deborah Goldberg, the managing attorney at Earthjustice Inc., which represented the petitioners.

Goldberg said in an interview that the groups brought the Article 78 proceeding against the four manufacturers that "refused to submit the report or to otherwise provide the mandated data."

The advocacy groups claimed that they wanted to use the reports to "educate their members and the public about toxic chemicals ... that may pose a threat to human health and to the environment" and to convince the state to restrict the use of those chemicals.

According to the Article 78 petition, Procter & Gamble had not filed a disclosure report with the state's environmental commissioner for at least 10 years. Church & Dwight, Reckitt Benckiser, and Colgate-Palmolive have never made the disclosures required by 6 NYCRR §659.6, the petition states.

The advocacy groups asked Justice Braun to make the companies file a report with the commissioner within 30 days.

The manufacturers moved to dismiss the petition, insisting that they had "made plain, either in direct response to Earthjustice's letter or via a response provided by the Soap and Detergent Association, that they did not believe they were in violation of any law or regulations" and had a "long history of diligent compliance with all laws and regulations."

"Indeed, the undisputed facts are that the Commissioner simply has never exercised his discretion under the applicable regulations, that the DEC has never provided any form for the information to be submitted as contemplated by the regulations at issue, and that the DEC has never contacted any manufacturers nor requested that the Attorney General bring any action against any of them for any alleged noncompliance," they wrote in court papers.

The companies said they would comply with any such requirements "[i]f and when the DEC commissioner ... exercises his discretion, and provides the proper forms and instructions with respect to §659.6."

They also argued that the advocacy groups had no standing to bring the action and could not bring a private action to enforce Article 35 of the Environmental Conservation Law.

Braun agreed.

"[T]here is no private right of action under ECL §71-3103, which gives the Attorney General the power to enforce ECL article 35," he wrote.

The judge said the petitioners failed to show their members belonged to a class for whose "particular benefit" Article 35 was enacted.

"The statute was meant to benefit the general public at large. That relief is sought in an article 78 proceeding seeking mandamus relief does not lead to a different result," Braun concluded.

Theodore E. Tsekerides of Weil, Gotshal & Manges represented Procter & Gamble.

Richard M. Goldstein and Kevin J. Perra of Proskauer Rose represented Church & Dwight.

Joseph D. Picciotti of Harris Beach represented Reckitt Benckiser.

John J. Kuster of Sidley Austin represented Colgate-Palmolive.

All of the defendants and their attorneys either declined to comment or did not return requests for comment.

The DEC also declined to comment.

Goldberg said in a statement that the advocacy groups intend to appeal.

"In the meantime, we would welcome the opportunity to work with the New York State Department of Environmental Conservation to ensure that this law is obeyed and that the chemicals in cleaning products are disclosed to the public," she said. "It's time for the companies to come clean about the chemicals in their products."