Approximately 27 billion diapers are used in America each year, and a bill under consideration in California would change how any diapers sold, distributed, or manufactured in California are labeled. Under Assembly Bill 1901, beginning in 2028 the manufacturer of any children's diaper that is manufactured, sold, or distributed in the state would be required to post on its website a list of all of the diaper's "intentionally added ingredients," and in 2029 would be required to include the list on the diaper's packaging. This proposed law follows the New York legislature's enactment of its own diaper labeling law, Senate Bill S2279C, which came into effect in 2025.
While AB 1901 bears many similarities to S2279C, there are several important differences that manufacturers should keep in mind:
- New York's law only requires the consumer to be informed of the ingredients (through the packaging), while California's law would go further and require the consumer also be informed of the chemical or raw material name of each ingredient, the Chemical Abstracts Service (CAS) number, and the function or purpose of the ingredient (through the list on the company's website)
- New York's law applies to all diapers, while California's law would regulate only children's diapers
- New York's law provides a civil penalty of 1 percent of the manufacturer's total annual in-state sales, not to exceed $1,000 per package or box, for a violation, while California's proposed law provides a civil penalty of $5,000 for a first violation and $10,000 for any subsequent violation
- New York's law applies only to diapers sold in the state, while California's proposed law applies to diapers sold, manufactured, or distributed in the state
- New York's law does not require manufacturers to maintain a website with a list of intentionally added ingredients, while California's law would require that a website be maintained with that list
However, the greatest distinction in practical effect may lie in enforcement. AB 1901 would not provide for a private right of action, instead vesting enforcement powers with state and local government agencies. But California's Unfair Competition Law (UCL) borrows violations of other laws and treats them as unlawful practices that the UCL makes independently actionable, De La Torre v. CashCall, Inc., 854 F.3d 1082, 1085 (9th Cir. 2017), even where those other laws do not provide for a private right action. De La Torre v. CashCall, Inc., 5 Cal. 5th 966, 980, 422 P.3d 1004, 1012 (2018). If AB 1901 passes in its current form, diaper manufacturers could be exposed to claims from consumers under the UCL based on an alleged failure to comply with AB 1901.
New York's General Business Law (GBL), which was amended to include S2279C, contains no similar borrowing provision for violations of other laws. But while California's proposed law clearly vests enforcement authority with the government, New York's law merely provides that "whenever a violation of this section has occurred, a civil penalty of one percent of the manufacturer's total annual in-state sales not to exceed one thousand dollars per package or box shall be imposed on the manufacturer." The question of whether a private right of action can be implied under S2279C has not yet been litigated but would turn on existing principles set forth by New York courts in prior cases. City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 627 (2009).
New York's law and California's proposed law signal an emerging trend by the states to extend their already expansive labeling regimes to diapers and may only add to the growing number of diaper-ingredient related class actions. But as seen above, each state's law will likely vary. Manufacturers should be aware not just of how to comply with these laws, but also of how government agencies and consumers may seek to enforce them. The Venable team can provide support in developing compliant labeling, responding to inquiries from government agencies, and litigating any actions brought by private parties.