BLC News
Proposition 65 and what it means for the leather sector
14th July, 2011
California Proposition 65 otherwise known as the Safe Drinking Water and Toxic Enforcement Act of 1986 is applicable to all products sold or distributed in California. The sole aim of the law is to protect Californian citizens and the State's drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm, and to inform citizens about exposure to such chemicals.
Proposition 65 can be considered a consumer "right-to-know-law" that informs consumers if certain hazardous chemicals are present in any product or its packaging or service sold in the State of California.
Proposition 65 has more recently become a product safety directive under which any retailer of a product or service can be challenged legally regarding the chemical content of a product against a list in excess of 850 potential chemical candidates.
Proposition 65 does not ban the sale of any product; it requires, however, that warnings are issued at point of sale advising citizens and consumers of potential risk. Proposition 65 only applies in the State of California and covers all products distributed within the State.
The list of chemicals is extensive (in excess of 850) and can be found at
http://www.oehha.org/prop65/prop65_list/files/P65single061110.pdf
Since its conception, Proposition 65 has resulted in hundreds of lawsuits against retailers and manufacturers of products that contain the listed hazardous substances including lead, cadmium and phthalates. Whilst the initial lawsuits were related to food containers, cookware and food items such as chocolate and potato chips, the prosecutors have moved into the area of fashion and accessories including leather and synthetic (PVC) products which have become the latest target for Proposition 65 litigation.
California law allows citizen enforcers to exercise certain rights in terms of litigation and enforcement of law. This allows for NGOs (Non Government Organisations), other groups, and private companies and even private citizens of California to sue in California courts and as a result collect a proportion of any fines. Such rights have encouraged a -bounty hunting" culture within the state, which in turn has led to many lucrative actions.
There are groups of professional California Proposition Litigants that are now actively pursuing actions within the fashion, footwear and apparel industries and environmental groups have now filed lawsuits against many prominent retailers alleging high levels of lead and phthalates in leather-containing products which are considered under the law to pose a risk to the consumer.
The law works by a litigant issuing a 60 day violation notice to a brand or retailer alleging the sale of footwear and accessories with high levels of chemicals in breach of Proposition 65 safe exposure levels. A 60-day violation notice is a legal document that is served to the retailer/brand/manufacturer etc alleging violation of the Proposition 65 warning requirements. During the 60 day notice period the California Attorney General"s office can review the allegations and take over the proceedings. However at the end of the 60 day period if no State action is taken then a private party is allowed to take action.
It is important to point out, that Proposition 65 is not a chemical content law. Most global product safety laws will prescribe safe limits in terms of absolute requirements of chemical per unit mass of product (ie as parts per million or ppm or mg/kg). Proposition 65, however prescribes safe harbour limits or exposure limits per day (ie as micrograms of chemical per day) which requires some knowledge of bioavailability of the chemical (ie exposure through touching or mouthing or inhaling) to determine the risk in product. This means that it is difficult to be proactive in terms of determining accepted levels of chemicals under California law. It is not until a settlement is reached that a limit is defined.
Such lawsuits have resulted in consent judgements that advise on standards for safe levels of lead and phthalates in products and agreed timescales by which products should meet these standards. The cost of participating in a settlement can be very high but does give some immunity from prosecution within the agreed timescale for the chemical in question. The settlement requirements for lead are largely in line with CPSIA standards (US federal standard for any product destined for the 12 years and under market). Other chemicals are falling in line with European Standards.
As an example, tens of retailers have agreed, via extensive financial penalties, to a consent settlement following the receipt of 60 day violation notices for lead in footwear and accessories. As a result the following now applies to those involved in the settlement:
Surface coatings (paint, pigments) 90ppm lead immediately
Leather (lead in substrate) 600ppm dropping to 300ppm on December 1 2011
PVC - 300ppm dropping to 200ppm on December 1 2011
All other components 300ppm
Such limits only apply to those retailers and brands who have applied to the settlement and for all other retailers the limits may not apply in terms of litigation risk.
In view of this, leather and PVC products should be considered at risk of litigation within any business trading in California. As a result of such risk many companies have been forced to review their policies with regard to restricted chemical management within the supply chain. Enforcing such standards within the supply chain (within a reasonable risk-based testing programme for restricted chemicals) should result in safer products in the marketplace and a lower risk of litigation.
BLC is able to provide tailored support on chemical compliance to Proposition 65 and other chemical compliance standards.
BLC members receive a 30% discount on testing.
For further information contact info@blcleathertech.com
