Proposition 65 a Renewed Concern
Proposition 65, an initiative that regulates hazardous-material content in consumer products, has been on California’s books since 1986. Initially enacted as a way to protect the state’s drinking water and to inform citizens about exposures to hazardous chemicals, the law is now being used by some environmental groups and lawyers against retailers they say sell products containing lead and other hazardous materials.
Attorney Richard Wortman said the renewed focus on Prop 65 goes hand-in-hand with the new federal Consumer Product Safety Improvement Act, which went into effect last February. “Prop 65 has been around for a long time and in some ways is California’s version of the CPSIA,” Wortman said. “The difference is, with Prop 65, private parties and consumers can bring the case.” In April the Center for Environmental Health (CEH), a nonprofit organization, issued a 60-day-warning notice with an intent to file lawsuits against 41 retailers that sold women’s purses containing lead within the hardware. The lead content tested at levels 90 times above the norm. According to the CEH, retailers included Kohl’s, Wal-Mart, Target, Macy’s, Forever 21, JCPenney and H&M. On June 24, the CEH made good on its claim and filed a suit in California’s Alameda County Superior Court against 39 retailers, alleging they had failed to warn consumers about exposure to lead through contact with the handbag hardware.
Wortman, who specializes in the apparel industry, said he has heard of several similar cases against retailers cropping up in recent weeks. He said he recommends his clients actively protect themselves against Prop 65 lawsuits by ensuring their compliance. “If you are going to prepare for the CPSIA, prepare for Prop 65. Both look at the same underlying issue,” he said.
According to the California Fashion Association, any company with 10 or more employees that operates within California or sells products in the state must comply with Prop 65. Failure to include or post a warning in compliance with Prop 65 may result in a penalty of $2,500 per violation per day or a court order halting all sales.
To learn more about Prop 65, visit http://oehha.org/prop65.html. —Erin Barajas
