BILL NUMBER: SB 646 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 20, 2011
AMENDED IN ASSEMBLY MAY 3, 2011
AMENDED IN SENATE APRIL 6, 2011
INTRODUCED BY Senator Pavley
FEBRUARY 18, 2011
An act to amend Sections 25214.1 and 25214.3
, 25214.3, and 25214.3.1 of the Health and Safety Code,
relating to toxics.
LEGISLATIVE COUNSEL'S DIGEST
SB 646, as amended, Pavley. Toxics: enforcement: lead and
cadmium jewelry.
Existing
(1) Existing law prohibits the
manufacturing, shipping, selling, or offering for sale of jewelry, as
defined, for retail sale in the state, unless the jewelry is made
entirely from specified materials. Existing law also prohibits any
person from taking those actions with regard to children's jewelry,
as defined, unless the children's jewelry is made entirely of
specified materials. Existing law, for purposes of those provisions,
defines among other terms, "amended consent judgment."
judgment" and "jewelry."
Existing law excludes a person who violates those prohibitions
from the criminal penalties otherwise imposed pursuant to the
hazardous waste control laws and instead provides that a person who
violates those prohibitions is liable for a civil penalty not to
exceed $2,500 per day for each violation. Existing law specifies that
a party that is a signatory to an amended consent judgment, or a
party to a consent judgment entered in a specified consolidation
action that contains certain terms is deemed to be in compliance with
those provisions. Existing law requires these collected civil
penalties to be deposited in the Hazardous Waste Control Account, for
expenditure by the Department of Toxic Substances Control, upon
appropriation by the Legislature, to implement and enforce those
prohibitions.
This bill would delete those provisions defining the term "amended
consent judgment," and those provisions specifying that a party that
is a signatory to the above-described amended consent judgment or
consent judgment enacted in a specified consolidation action is
deemed to be in compliance with those provisions. The bill would
also revise the definition of the term "jewelry."
(2) Existing law requires a manufacturer or supplier to provide a
specified certification to a person who sells or offers for sale that
manufacturer's or supplier's jewelry, upon the request of that
person, or to display the certification prominently on the shipping
container or on the packaging of jewelry.
This bill would instead require a manufacturer or supplier of
jewelry that is sold, offered for sale, or offered for promotional
purposes to prepare this certification and would delete the condition
that the certification be provided on request, thereby requiring the
manufacturer or supplier to either provide the certification to a
person who sells or offers for sale that manufacturer's or supplier's
jewelry or to display the certification prominently on the shipping
container or on the packaging of jewelry.
(3) Existing law imposes criminal penalties upon a manufacturer or
supplier of jewelry who knowingly and intentionally manufactures,
ships, sells, offers for sale, or offers for promotional purposes
jewelry containing lead or cadmium in violation of those provisions
or who knowingly and with intent to deceive falsifies any document or
certificate required to be kept or produced pursuant to those
provision.
This bill would impose a state-mandated local program by creating
a new crime with regard to the sale, or offering for sale, of this
jewelry and the preparation of the certification.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25214.1 of the Health and Safety Code is
amended to read:
25214.1. For purposes of this article, the following definitions
shall apply:
(a) "Body piercing jewelry" means any part of jewelry that is
manufactured or sold for placement in a new piercing or a mucous
membrane, but does not include any part of that jewelry that is not
placed within a new piercing or a mucous membrane.
(b) "Children" means children aged six six
years of age and younger.
(c) "Children's jewelry" means jewelry that is made for, marketed
for use by, or marketed to, children. For purposes of this article,
children's jewelry includes, but is not limited to, jewelry that
meets any of the following conditions:
(1) Represented in its packaging, display, or advertising, as
appropriate for use by children.
(2) Sold in conjunction with, attached to, or packaged together
with other products that are packaged, displayed, or advertised as
appropriate for use by children.
(3) Sized for children and not intended for use by adults.
(4) Sold in any of the following:
(A) A vending machine.
(B) Retail store, catalog, or online Internet Web site,
in which a person exclusively offers for sale products that are
packaged, displayed, or advertised as appropriate for use by
children.
(C) A discrete portion of a retail store, catalog, or online
Internet Web site, in which a person offers for sale products that
are packaged, displayed, or advertised as appropriate for use by
children.
(d) (1) "Class 1 material" means any of the following materials:
(A) Stainless or surgical steel.
(B) Karat gold.
(C) Sterling silver.
(D) Platinum, palladium, iridium, ruthenium, rhodium, or osmium.
(E) Natural or cultured pearls.
(F) Glass, ceramic, or crystal decorative components, including
cat's eye, cubic zirconia, including cubic zirconium or CZ,
rhinestones, and cloisonne.
(G) A gemstone that is cut and polished for ornamental purposes,
except as provided in paragraph (2).
(H) Elastic, fabric, ribbon, rope, or string, unless it contains
intentionally added lead and is listed as a class 2 material.
(I) All natural decorative material, including amber, bone, coral,
feathers, fur, horn, leather, shell, or wood, that is in
its natural state and is not treated in a way that adds lead.
(J) Adhesive.
(2) The following gemstones are not class 1 materials: aragonite,
bayldonite, boleite, cerussite, crocoite, ekanite, linarite,
mimetite, phosgenite, samarskite, vanadinite, and wulfenite.
(e) "Class 2 material" means any of the following materials:
(1) Electroplated metal that meets the following standards:
(A) On and before August 30, 2009, a metal alloy with less than 10
percent lead by weight that is electroplated with suitable under and
finish coats.
(B) On and after August 31, 2009, a metal alloy with less than 6
percent lead by weight that is electroplated with suitable under and
finish coats.
(2) Unplated metal with less than 1.5 percent lead that is not
otherwise listed as a class 1 material.
(3) Plastic or rubber, including acrylic, polystyrene, plastic
beads and stones, and polyvinyl chloride (PVC) that meets the
following standards:
(A) On and before August 30, 2009, less than 0.06 percent (600
parts per million) lead by weight.
(B) On and after August 31, 2009, less than 0.02 percent (200
parts per million) lead by weight.
(4) A dye or surface coating containing less than 0.06 percent
(600 parts per million) lead by weight.
(f) "Class 3 material" means any portion of jewelry that meets
both of the following criteria:
(1) Is not a class 1 or class 2 material.
(2) Contains less than 0.06 percent (600 parts per million) lead
by weight.
(g) "Component" means any part of jewelry.
(h) "Jewelry" means any of the following:
(1) Any of the following ornaments worn by a person:
(A) An anklet.
(B) Arm cuff.
(C) Bracelet.
(D) Brooch.
(E) Chain.
(F) Crown.
(G) Cuff link.
(H) Hair accessory.
(I) Earring.
(J) Necklace.
(K) Pin.
(L) Ring.
(M) Tie clip.
(M)
(N) Body piercing jewelry.
(N)
(O) Jewelry placed in the mouth for display or
ornament.
(2) Any bead, chain, link, pendant, or other component of an
ornament specified in paragraph (1).
(3) A charm, bead, chain, link, pendant, or other attachment to
shoes or clothing that can be removed and may be used as a component
of an ornament specified in paragraph (1).
(4) A watch in which a timepiece is a component of an ornament
specified in paragraph (1), excluding the timepiece itself if the
timepiece can be removed from the ornament.
(i) (1) "Surface coating" means a fluid, semifluid, or other
material, with or without a suspension of finely divided coloring
matter, that changes to a solid film when a thin layer is applied to
a metal, wood, stone, paper, leather, cloth, plastic, or other
surface.
(2) "Surface coating" does not include a printing ink or a
material that actually becomes a part of the substrate, including,
but not limited to, pigment in a plastic article, or a material that
is actually bonded to the substrate, such as by electroplating or
ceramic glazing.
SEC. 2. Section 25214.3 of the Health and Safety Code is amended
to read:
25214.3. (a) Except as provided in Sections 25214.3.3 and
25214.3.4, a person who violates this article shall not be subject to
criminal penalties imposed pursuant to this chapter and shall only
be subject to the administrative or civil penalty specified in
subdivision (b).
(b) (1) A person who violates this article shall be liable for an
administrative or a civil penalty not to exceed two thousand five
hundred dollars ($2,500) per day for each violation. That
administrative or civil penalty may be assessed and recovered in an
administrative action filed with the Office of Administrative
Hearings or in a civil action brought in any court of competent
jurisdiction.
(2) In assessing the amount of an administrative or a civil
penalty for a violation of this article, the presiding officer or the
court, as applicable, shall consider all of the following:
(A) The nature and extent of the violation.
(B) The number of, and severity of, the violations.
(C) The economic effect of the penalty on the violator.
(D) Whether the violator took good faith measures to comply with
this article and the time these measures were taken.
(E) The willfulness of the violator's misconduct.
(F) The deterrent effect that the imposition of the penalty would
have on both the violator and the regulated community as a whole.
(G) Any other factor that justice may require.
(c) Administrative and civil penalties collected pursuant to this
article shall be deposited in the Toxic Substances Control Account,
for expenditure by the department, upon appropriation by the
Legislature, to implement and enforce this article, except as
provided in Section 25192.
(d) (1) For the purpose of administering and enforcing this
article, an authorized representative of the department, upon
obtaining consent or after obtaining an inspection warrant pursuant
to Title 13 (commencing with Section 1822.50) of Part 3 of the Code
of Civil Procedure, may, upon presenting appropriate credentials and
at a reasonable time, do any of the following:
(A) Enter a factory, warehouse, or establishment where jewelry is
manufactured, packed, held, or sold; enter a vehicle that is being
used to transport, hold, or sell jewelry; or enter a place where
jewelry is being held or sold.
(B) Inspect a factory, warehouse, establishment, vehicle, or place
described in subparagraph (A), and all pertinent equipment, raw
material, finished and unfinished materials, containers, and labeling
in the factory, warehouse, establishment, vehicle, or place. In the
case of a factory, warehouse, or establishment where jewelry is
manufactured, packed, held, or sold, this inspection shall include
any record, file, paper, process, control, and facility that has a
bearing on whether the jewelry is being manufactured, packed, held,
transported, sold, or offered for sale or for promotional purposes in
violation of this article.
(2) (A) An authorized representative of the department may secure
a sample of jewelry when taking an action authorized pursuant to this
subdivision. If the representative obtains a sample prior to leaving
the premises, he or she shall leave a receipt describing the sample
obtained.
(B) The department shall return, upon request, a sample that is
not destroyed during testing when the department no longer has any
purpose for retaining the sample.
(C) A sample that is secured in compliance with this section and
found to be in compliance with this article that is destroyed during
testing shall be subject to a claim for reimbursement.
(3) An authorized representative of the department shall have
access to all records of a carrier in commerce relating to the
movement in commerce of jewelry, or the holding of that jewelry
during or after the movement, and the quantity, shipper, and
consignee of the jewelry. A carrier shall not be subject to the other
provisions of this article by reason of its receipt, carriage,
holding, or delivery of jewelry in the usual course of business as a
carrier.
(4) An authorized representative of the department shall be deemed
to have received implied consent to enter a retail establishment,
for purposes of this section, if the authorized representative enters
the location of that retail establishment where the public is
generally granted access.
SEC. 3. Section 25214.3.1 of the Health
and Safety Code is amended to read:
25214.3.1. (a) A manufacturer or supplier of jewelry that is
sold, offered for sale, or offered for promotional purposes shall
prepare and, at the request of the department, submit to the
department no more than 28 days after the date of the request,
technical documentation or other information showing that the jewelry
is in compliance with the requirements of this article.
(b) A manufacturer or supplier of jewelry sold or offered for sale
in this state shall do either of the following:
(1) Provide a certification to a person who sells or offers for
sale that manufacturer's or supplier's jewelry, upon the request of
that person.
(2) Display the certification prominently on the shipping
container or on the packaging of jewelry.
(c) The certification required by subdivision (b) shall attest
that the jewelry does not contain a level of lead or cadmium that
would prohibit the jewelry from being sold or offered for sale
pursuant to this article.
(b) A manufacturer or supplier of jewelry that is sold, offered
for sale, or offered for promotional purposes shall prepare a
certification. This certification shall attest that the jewelry does
not contain a level of lead or cadmium that prohibits the jewelry
from being sold or offered for sale pursuant to this article.
(c) A manufacturer or supplier of jewelry sold or offered for
promotional purposes in this state shall do either of the following:
(1) Provide the certification required by subdivision (b) to a
person who sells or offers for sale that manufacturer's or supplier's
jewelry.
(2) Display the certification required by subdivision (b)
prominently on the shipping container or on the packaging of jewelry.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.