BILL ANALYSIS Ó
SB 646
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 646
AUTHOR: Pavley
AMENDED: Introduced
FISCAL: No HEARING DATE: April 4, 2011
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : TOXICS: ENFORCEMENT: LEAD JEWELRY
SUMMARY :
Existing federal law :
1)Under the Consumer Product Safety Act, provides protection
of the public against unreasonable risks of injury
associated with consumer products, largely by developing
uniform safety standards for those products.
2)Under the Consumer Product Safety Improvement Act of 2008,
enhances safety standards for consumer products, including
new specified levels for lead content and increases
enforcement and penalty provisions under the authority of
the Consumer Product Safety Commission (CPSC).
Existing California law :
1) Under Proposition 65 (the Safe Drinking Water and Toxic
Enforcement Act of 1986), lists toxins that are known to
the state to cause cancer and reproductive damage. Lead is
listed on the Proposition 65 list as both a carcinogen and
a reproductive toxin.
2) Under the Lead-Containing Jewelry Law:
a) Prohibits the manufacture, shipping, sale, or
offering for sale of jewelry, children's jewelry, or
jewelry used in body piercing that is not made entirely
from certain specified materials and specifically
restricts the amount of lead that may be contained in
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jewelry intended for use by both children and adults.
The Department of Toxic Substances Control (DTSC) is
responsible for enforcement of these provisions.
b) Provides that violators of these prohibitions are
liable for a civil penalty not to exceed $2,500 a day
for each violation to be deposited into the Hazardous
Waste Control account to be used to implement and
enforce these provisions.
c) 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.
This bill , under the Lead-Containing Jewelry Law, would revise
those provisions to specify that a party that is a signatory
as of January 1, 2012, to the above-described amended consent
judgment, or consent judgment enacted in a specified
consolidation action that contains certain terms is deemed to
be in compliance with those provisions regulating the
manufacturing, shipping, selling, or offering for sale of lead
jewelry.
COMMENTS :
1) Purpose of Bill . According to the author, lead has long
been known to be a toxic substance with no biological
benefits. It is a powerful neurotoxin, but can affect
virtually every organ and system of the body. While lead
remains in wide-spread use, it has been removed from many
products in order to protect human health. Children are
particularly susceptible. In California, concentrations of
lead in jewelry were sharply limited with the passage of
the California Lead-Jewelry Law. Enforcement of this law
began in 2007. The author states that review of the
enforcement data reveals a significant loophole. Existing
law allows an increasing number of businesses to bypass
much of the statutory enforcement provisions and avoid
financial penalties for violations. The author argues that
this bill amends current law to freeze the list of jewelry
vendors and suppliers subject to non-statutory enforcement.
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2) Lead: Recognized Hazards . Lead has been listed under
Proposition 65 since 1987 as a substance that can cause
reproductive damage and birth defects, and has been on the
list of chemicals known to cause cancer since 1992. Lead
is a neurotoxin and is particularly hazardous to children.
Lead in young children even at very minute levels can
result in reduced IQ, learning disabilities, attention
deficit disorders, behavioral problems, stunted growth,
impaired hearing, and kidney damage.
The Centers for Disease Control states there is no evidence
of a threshold below which adverse effects are not
experienced.
Despite wide and longstanding recognition of lead's
toxicity, the jewelry industry continues to knowingly
manufacture, import, and distribute jewelry products,
especially inexpensive jewelry marketed to children, which
can contain as much as 100 percent lead.
3) Background . In June 2004, the California Attorney General
(AG) filed a lawsuit against numerous California-based
retailers alleging they violated Proposition 65 by failing
to warn consumers about the health risks of exposure to the
lead contained in certain jewelry. The state's testing
found high levels of lead in both the metallic and
nonmetallic components of the jewelry targeted in the case.
The amounts were well above the level that triggers the
requirement to provide a Proposition 65 warning to
consumers. In December, 2004 the retailers agreed to
mediate. The settlement was reached in January, 2006.
Shortly after the original parties settled the lawsuit, the
California Legislature enacted the Lead-Containing Jewelry
Law (Assembly Bill 1681 (Pavley) Chapter 415, Statues of
2006). The law restricted lead in jewelry for children and
adults.
In 2008, the Legislature amended the Lead-Containing
Jewelry Law (Assembly Bill 2901 (Brownley) Chapter 575,
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Statutes of 2008). Among other things, AB 2901 amended the
definition of jewelry, extended the restrictions to
promotional items, required manufacturers to provide
compliance certifications, and enhanced DTSC's enforcement
authority.
4) Enforcement . The California Lead-Containing Jewelry Law
provides for civil penalties of $2500 a day per violation,
intentional violations by manufacturers or suppliers can
result in a fine of $5,000 to $100,000 and/or imprisonment,
and intentional document falsification can result in a fine
of up to $50,000 and/or imprisonment. The provisions of
the law are enforced by DTSC.
However, parties to the original amended consent judgment
or to a subsequent agreement with significantly similar
terms are not subject to enforcement under the statute, but
rather subject to enforcement per the amended consent
judgment which states that the AG enforces the provisions
of the consent judgment. The consent judgment provides
that the AG may issue a Notice of Violation (NOV) and that
the violator must respond within 30 days with a Notice of
Election of Response (NOR). If the NOR is submitted by the
violator within 15 days, does not contest the NOV, and a
corrective action plan is included, no fine is assessed.
If there is failure to comply then there are potential
actions to be taken by the AG.
There is no penalty for receiving multiple NOVs as long as
the violator complies with the consent judgment as
specified above. Since enforced, the AG has issue
approximately 96 NOVs of which 77 or 80 percent went to 22
repeat offenders. In just the first 3 months on 2011, the
AG reports that there have been 16 NOVs issued, all to
repeat offenders.
Additionally, the original consent judgment stipulates that
subsequent agreements may be entered and provide violators
with the same protections from penalties as the original
consent judgment. There were originally 113 signatories to
the original consent judgment. An additional 125 parties
have subsequently signed similar agreements. A loophole
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was created in the original consent judgment by not
stipulating a date by which violators could no longer sign
on to this type of agreement. Therefore, there continue to
be new agreements signed that model the original consent
judgment and thereby provide perpetual protection for often
repeat violators from enforcement under the statute.
5) Closing the loophole. Since enactment of the California
Lead-Containing Jewelry Law, enforcement has resulted in
over 100 documented violations of the lead concentration
limit standards involving 150-200 pieces of jewelry. Of
these violations well over two-thirds of them have been
settled by the violators with no penalties due. New
offenders bypass the statute by signing agreements similar
to the original consent judgment and many repeat offenders
continue to violate without penalty of fine by simply
responding with the required NOR, taking corrective action
on that violation and then violating again.
SB 646 would close the door to new violators by preventing
any new signatories to the existing or a new consent
judgment. However, the 238 current signatories and any
additional violators that sign on prior to January 1, 2012,
will continue to be shielded from enforcement and fines.
After five years, is it still appropriate to provide these
protections to these companies? After five years, the
passage of the California statute and the federal statute
restricting lead in jewelry, it may be time for the
Legislature to remove the exception for the signatories of
the consent judgments and require everyone to comply with
California law.
6) Double Referral to Judiciary Committee . If this measure is
approved by this committee, the do pass motion must include
the action to re-refer the bill to the Senate Judiciary
Committee.
SOURCE : Senator Pavley
SUPPORT : California Safe Schools
Center for Environmental Health
Environmental Working Group
Planning and Conservation League
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Sierra Club California
OPPOSITION : None on file