BILL ANALYSIS
AB 1656
Page 1
Date of Hearing: March 16, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1656 (Ma) - As Amended: March 2, 2010
As Proposed to be Amended
SUBJECT : FUR PRODUCTS: LABELING
KEY ISSUE : TO BETTER INFORM CONSUMERS WHO MAY MISTAKE UNLABELED
ANIMAL FUR TO BE FAKE FUR, SHOULD ALL CLOTHING APPAREL FOR SALE
IN CALIFORNIA THAT CONTAINS REAL ANIMAL FUR, REGARDLESS OF PRICE
OR VALUE OF THE FUR, BE REQUIRED TO CARRY A TAG OR LABEL STATING
THE ANIMAL FROM WHICH THE FUR WAS ACQUIRED AND, IF IMPORTED, THE
COUNTRY OF ORIGIN OF THE FUR?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, sponsored by the Humane Society of the United States,
would require all clothing apparel for sale in this state that
contains genuine animal fur, regardless of price or value of the
fur, to carry an attached tag or label stating the animal from
which the fur was acquired and the country of origin of any
imported fur. Current federal law, the Fur Products Labeling
Act, exempts fur-trimmed garments valued at less than $150 from
the requirement to display specified information about the
animal fur on the label or tag attached to the garment. The
author contends that this "loophole" exemption affects a
substantial number of consumers, indicating that almost one out
of every eight fur garments or accessories make their way into
stores without any information about fur content because they
are purportedly exempt from the federal labeling requirements.
According to supporters, unlabeled fur garments pose particular
problems for consumers with allergies and ethical objections to
items containing real animal fur because many of these items are
dyed in non-natural colors, with the result that the fur appears
fake and can easily be mistaken for faux fur unless accurately
labeled. Therefore, in order to eliminate the impact of the
federal loophole in California and ensure that consumers know
before purchase what kind of animal fur, if any, is contained in
an item of clothing apparel, this bill would apply specified
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labeling requirements to all apparel containing fur for sale in
California, regardless of the price of the apparel or the amount
or value of the fur. Consistent with federal law, boots and
footwear containing fur would be subject to these labeling
requirements, but handbags and purses would be exempted. In
addition, this bill does not require more information to appear
on the label than is already required under federal law, nor
does it attempt to restrict the manufacture or sale of fur
garments. If enacted, this bill would make California the sixth
state in the nation to enact fur labeling requirements more
broadly applicable than those under federal law. There is no
known opposition to this bill.
SUMMARY : Requires all clothing apparel for sale in this state
that contains genuine animal fur, regardless of price or value
of the fur, to carry an attached tag or label stating the animal
from which the fur was acquired and the country of origin of any
imported fur. Specifically, this bill :
1)Prohibits any person from selling or displaying for sale any
clothing apparel containing any amount of animal fur,
regardless of the overall price or value of the fur, without
an attached and conspicuously displayed tag or label that
states the animal from which the fur was acquired and the
country of origin of any imported furs used.
2)Defines "fur" to mean any animal skin or part thereof with
hair, fleece, or fur fibers attached thereto, either in its
raw or processed state.
3)Provides that labeling of articles of clothing pursuant to
this bill may be accomplished by adding the required
disclosures to the permanent tag attached to the clothing, to
the temporary tag used by the merchant to identify the
merchandise, or by affixing to the article of clothing, in a
conspicuous place, a sticker listing the required disclosures.
4)Exempts sellers of used articles of clothing made wholly or
partly of animal fur from these labeling requirements.
5)Provides that each article of clothing not labeled pursuant to
these requirements constitutes a separate violation of this
act, subject to a civil penalty of not more than five hundred
dollars ($500) for the first violation, and not more than one
thousand dollars ($1000) for each subsequent violation.
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6)Provides that a retail merchant is not liable for a violation
if a manufacturer or supplier for the merchant certifies to
that merchant, in the invoice or other written document, that
any tag or label attached by the manufacturer or supplier
conforms to these labeling requirements, unless the retail
merchant knew, or reasonably should have known, that the
certification is false.
7)Provides that nothing in this bill shall be construed to
preempt any federal law, or any other statute that prohibits
or restricts the sale of fur products. Further provides that
if any provision of this bill is held to be preempted by
federal law, the preemption shall not affect other provisions
of this bill that can be given effect.
8) If enacted, becomes operative on September 1, 2011.
EXISTING LAW :
1)Pursuant to the federal Fur Products Labeling Act (15 U.S.C.
69), prohibits the manufacture for sale, sale, advertising,
transportation, or distribution of any fur product which has
been shipped and received in commerce, and which is misbranded
or falsely or deceptively advertised or invoiced, as defined.
These and other related acts are deemed unlawful and
constitute unfair methods of competition, and unfair and
deceptive practices in commerce under the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
2)Pursuant to Section 301.39 of Title 16 of the Code of Federal
Regulations, provides that if the cost of any fur trim or
other manufactured fur or furs contained in a fur product does
not exceed $150 to the manufacturer of the finished fur
product, or if a manufacturer's selling price of a fur product
does not exceed $150, then the fur product shall be exempt
from the requirements of the Fur Products Labeling Act. The
exemption does not apply, however, if:
a) Any false, deceptive, or misleading representations
about the fur contained in the fur product are made.
b) Any representations as to the fur are made in the
labeling, invoicing, or advertising of the fur product
without disclosing specified information, including the
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name of the animal that produced the fur, whether the fur
is bleached or dyed, and whether the fur is composed in
substantial part of paws, tails, bellies, or waste fur.
c) The fur product contains dog or cat fur.
3)Pursuant to Section 301.1 of Title 16 of the Code of Federal
Regulations, defines the term "wearing apparel" to mean any
articles of clothing or covering for any part of the body and
including any assembled furs, used furs, or waste furs, in
attached form, including mats, plates or garment shells or
furs flat off the board, and furs which have been dyed,
tip-dyed, bleached or artificially colored, intended for use
as or in wearing apparel.
4)Pursuant to the Health and Safety Code,
a) Prohibits the manufacture, shipment, sale, or offer for
sale of lead-containing jewelry in California, unless the
composition of the jewelry meets certain specifications.
b) Requires a manufacturer or supplier of jewelry sold or
offered for sale in this state to submit technical
documentation or other information to the Department of
Toxic Substances Control to obtain certification attesting
that the jewelry does not contain a level of lead that
would prohibit the jewelry from being sold or offered for
sale under the preceding requirement.
c) Further requires the manufacturer or supplier of jewelry
to either display the certification prominently on the
shipping container or on the packaging of jewelry, or
alternatively, to provide the certification to any person
who sells or offers for sale that manufacturer's or
supplier's jewelry, upon the person's request. (Health and
Safety Code Sections 25214.2 to 25214.3.1.)
5)Pursuant to the Song-Beverly Consumer Warranty Act, defines
"clothing" to mean any wearing apparel, worn for any purpose,
including under and outer garments, shoes, and accessories
composed primarily of woven material, natural or synthetic
yarn, fiber, or leather or similar fabric. (Civil Code
Section 1791(c).)
COMMENTS : This bill, sponsored by the Humane Society of the
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United States, seeks to require all clothing apparel for sale in
this state that contains genuine animal fur, regardless of
price, to carry an attached tag or label stating the animal from
which the fur was acquired and the country of origin of any
imported fur. According to the sponsor, this bill is intended
to "close a loophole" in federal law that exempts fur-trimmed
garments valued at less than $150 from the requirement to
display information about the animal fur on the label of the
garment. The author writes in support:
More than one million items of clothing or accessories
are sold with animal fur in the United States each
year. The federal Fur Products Labeling Act requires
all garments with real animal fur valued at $150 or
more to indicate species and country of origin on
clothing labels. However, federal law is silent on
labeling requirements for products with animal fur
valued at less than $150. Due to the vast number of
fur factory farms around the world that mass produce
raccoon dogs, rabbits, foxes, and other animals at a
low-cost, and the ability of garment manufacturers to
piece together cheap leftover fur pelts, it is common
for garments to go unlabeled under the federal
loophole.
California consumers have the right to know what they
are buying and what they are wearing, regardless of
the value of the fur involved. AB 1656 addresses the
federal loophole by requiring all garments sold in
California that contain animal fur to say so on their
label.
Labeling Required Regardless of Apparel's Price or Value of Fur.
Federal law specifically exempts fur products from labeling
requirements if the cost of the fur contained in the fur product
does not exceed $150 to the manufacturer of the finished fur
product, or if the manufacturer's selling price of a fur product
does not exceed $150. The exemption does not apply, however, if
(1) the fur product contains dog or cat fur; (2) any false,
deceptive, or misleading representations about the fur contained
in the fur product are made; or (3) if any representations as to
the fur are made in the labeling, invoicing, or advertising of
the fur product without disclosing specified information,
including the name of the animal that produced the fur, whether
the fur is bleached or dyed, and whether the fur is composed in
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substantial part of paws, tails, bellies, or waste fur. (16
C.F.R. 301.39.)
Under Section 301.39, the exemption is inapplicable only if some
representation about the fur is affirmatively made. If no
representation is made at all about a fur product under $150 in
value, and the product does not contain dog or cat fur, then the
exemption applies. Thus, the regulation apparently provides an
incentive to not label fur products valued under $150, and to
not make any representation about the fur content of such
apparel, at the expense of providing valuable information to
consumers.
The author contends that unlabeled fur apparel attributable to
the Section 301.39 exemption is in fact a widespread problem
affecting a large number of retailers and consumers. The Humane
Society has provided the Committee with evidence from some of
its ongoing investigations that reveal national retailers such
as Nordstrom, Loehmann's, Ross, and Burlington Coat Factory,
among others, commonly sell unlabeled fur-trimmed jackets as
well as fur garments that inaccurately identify the kind of fur
they contain.
The scope of the problem is also illustrated by recent
International Trade Commission data, cited by the Federal Trade
Commission, that estimates the total number of fur garments,
fur-trimmed garments, and fur accessories manufactured each year
to be around 1,019,054 items, with approximately 132,477 of
those items exempt from the labeling requirements pursuant to 16
CFR 301.39. (Federal Register, Vol. 74, No. 28, February 12,
2009.) These figures support the contention that almost one out
of every 8 fur garments or accessories make their way into
stores without any information about fur content because they
are exempt from the federal labeling requirements. In
advocating for this bill, the author believes that California
consumers have the right to know what kind of item they are
purchasing, and that this right should not be compromised merely
because the value of the item or the fur used in it falls below
an arbitrary cutoff amount. Thus, the bill seeks to apply the
specified labeling requirements to all apparel containing fur
for sale in California, regardless of the price of the apparel
or the amount or value of the fur contained therein.
Requiring Accurate Labeling Provides Essential Information to
Consumers . In addition to extending labeling requirements to
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every fur garment for sale in the state, regardless of price or
value of the fur, this bill specifies two pieces of information
appear on the label itself: (1) the animal from which the fur
was acquired; and (2) the country of origin of any imported furs
used in the item. Federal law already requires both of these
items to appear on the label of every fur product subject to the
regulations, in addition to the name of the manufacturer and
other disclosures about fur composition, if applicable.
Consistent with its stated purpose to simply close the $150
federal "loophole" in California, this bill does not require
more information to appear on the label than is already required
under federal law, nor does it attempt to restrict the
manufacture or sale of fur garments.
This important bill protects consumers by ensuring that
essential and accurate information is displayed on a tag or
label attached to every fur garment for sale in California. In
this aspect, it is similar to existing labeling requirements for
lead-containing jewelry under Health & Safety Code Sections
25214.2 to 25214.3.1. Under that law, manufacturers or
suppliers of lead jewelry for sale must display a specified
certification, attesting that the jewelry does not contain an
impermissibly high level of lead under state law, either on the
shipping container or packaging of the jewelry. This bill,
however, requires far less state involvement because, unlike the
lead jewelry law, it does not require the manufacturer or
supplier to submit technical documentation to state authorities
who must then run lab tests on a sample item to determine
whether to issue the necessary certification statement.
Ultimately, this bill will eliminate the abundance of unlabeled
fur garments for sale that pose particular problems for
consumers with allergies and ethical objections to items
containing real animal fur. Many garments contain animal fur
that has been dyed in non-natural colors, such as pink, red, or
blue, with the result that the fur appears fake and can easily
be mistaken for faux fur unless accurately labeled. This bill
will particularly benefit consumers who are allergic to any or
all types of real animal fur by enabling them to identify and
purchase garments made of faux fur or real fur that does not
trigger an allergic reaction. Similarly, this bill will benefit
consumers who have ethical objections to real fur or fur farming
practices in other countries by facilitating an informed
purchasing decision with peace of mind.
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Five States Already Require Labeling of Fur Apparel : If passed,
this bill would make California the sixth state in the nation to
enact fur labeling requirements more broadly applicable than
those under federal law. In 1941, Massachusetts became the
first state to require "all natural, dyed or imitation furs"
sold at retail to display the name of the animal on the label.
Wisconsin followed suit in 1949 with the same requirement but
exempting any garment with a price of $50 or less.
In 1951, the federal Fur Products Labeling Act was passed. It
was not until 55 years later, in 2006, that New York became the
third state to pass fur labeling legislation. Under New York's
law, all garments manufactured, imported for profit, or sold in
the state that contain genuine animal fur or fake (imitation)
fur must carry a label that states either "real fur" or "fake
fur," in addition to the name of the animal and the country of
origin as required by the federal Act. In 2008, Delaware passed
legislation (effective June 2010) that requires new fur garments
sold by retail merchants to indicate the presence of real fur on
the tag or label. Sellers of used or second-hand garments are
exempted from the labeling requirements.
In 2009, New Jersey passed legislation (effective March 2010)
that requires all animal fur garments for sale in the state,
regardless of price or value of the fur, to display the type of
animal and country of origin on the label. This bill
essentially proposes to follow New Jersey's lead and close the
so-called federal "loophole" that allow garments priced or
valued at under $150 to be sold unlabeled. Like New Jersey's
law, this bill also provides exemptions for sellers of used
garments, as well as retailers who have obtained a written
guarantee from the manufacturer that the label conforms to these
labeling requirements.
State Laws Not Preempted by Federal Fur Labeling Act : Although
the Federal Fur Labeling Act does not specifically authorize
states to adopt more restrictive labeling requirements for fur
products, the Committee's research has not identified any
successful challenges to state fur labeling laws on federal
preemption grounds. In two of the five states (Delaware and New
Jersey) that have passed state fur labeling laws, those laws do
not become effective until later this year. In 2006, New York
became the first state to specifically pass a law to close the
federal loophole, and no preemption challenge to that law has
been identified at this time.
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In any case, this bill specifically provides that none of its
provisions shall be construed to preempt any federal law, or any
other statute that prohibits or restricts the sale of fur
products. If any provision is held to be preempted by federal
law, it is severable from other provisions that can be given
effect. In addition, there is federal legislation (H.R. 2480)
pending in the 111th Congress that, if passed, would eliminate
the current exemption for fur products valued at under $150 and
specifically authorize states to pass stricter fur labeling
laws.
Retail Merchants Not Liable If Manufacturer or Supplier
Certifies Compliance with Labeling Requirements. The author has
recently amended the bill to relieve a retail merchant from
liability for any violation of these provisions if the
manufacturer or supplier for that merchant certifies in writing
that any tag or label attached by the manufacturer or supplier
conforms to these labeling requirements. The immunity does not
apply if the retail merchant knew, or reasonably should have
known, that the certification is false. This non-liability
provision, which mirrors those contained in the recent New
Jersey law, allows retailers to rely on written certification
from their manufacturers or suppliers of fur apparel that any
attached tags or labels, if provided, comply with labeling
requirements. This is reasonable because manufacturers and
suppliers are in a better position than retailers to know what
type of animal fur was used in the garment (if in fact real
animal fur was used) and from what country the fur came from, if
imported. Although there is no requirement that the
manufacturer or supplier attach the required tags or labels,
retailers have some business leverage to encourage this practice
because they could presumably choose to engage less with any
manufacturer or supplier who does not label or certify their fur
products.
Fur Handbags Not Subject to These Labeling Requirements. The
Fur Products Labeling Act (15 U.S.C. 69) defines its operative
term "fur product" to mean any article of wearing apparel made
in whole or in part of fur or used fur. Under the federal Act,
the term "wearing apparel" means any articles of clothing or
covering for any part of the body. (16 CFR 301.1.) Under this
definition, shoes or footwear containing fur are subject to the
federal labeling requirements because they are worn to cover the
feet, but handbags or purses containing fur are exempt because
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they do not cover the body and are carried rather than worn by a
person.
This bill prohibits the sale or display for sale of "any coat,
jacket, garment, or other clothing apparel made wholly or
partially of fur" unless specified labeling requirements are
met. The author has confirmed to the Committee that this bill
is not intended to apply fur labeling requirements to handbags
or purses, and that the recent insertion of the word "clothing"
before the term "apparel" in proposed Section 1739.82(a)
(modeled after a recent New Jersey statute) is meant to further
clarify this intent.
It is important to note that the policy reasons cited by the
author for requiring complete and accurate labeling of fur
clothing articles seem to apply equally to handbags containing
fur. If the bill were to eliminate the distinction between
fur-trimmed garments and fur-trimmed handbags that allows the
latter to go completely unlabeled in this state, it would go
even farther in accomplishing its objective of promoting
transparency and informed consumer purchasing of products
containing animal fur.
Nevertheless, if the bill is to apply only to clothing but not
handbags, there is an existing definition of "clothing" in the
Civil Code that may present a potential conflict. Under Civil
Code Section 1791(c), "clothing" is defined to mean any wearing
apparel, worn for any purpose, including under and outer
garments, shoes, and accessories composed primarily of woven
material, natural or synthetic yarn, fiber, or leather or
similar fabric. (Emphasis added.) Although using the term
"clothing apparel" might not have posed a problem when enacted
in New Jersey, here its use may cause unintended consequences.
On one hand, the definition of clothing in Section 1791(c)
refers to "wearing apparel," which under federal law is limited
to clothing articles that cover the body but is not defined
under state law. On the other hand, the same definition
includes "accessories," which typically includes purses and
handbags.
Proposed Amendment : Therefore, to ensure that this bill mirrors
the scope of the federal Act by requiring only articles of fur
clothing to be labeled, the author has proposed to amend the
bill to explicitly define the term "clothing apparel" in a
manner identical to the definition of "wearing apparel" under 16
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CFR 301.1. The amendments are:
On page 2, line 13, insert: (c) "Clothing apparel" means
any articles of clothing or covering for any part of the
body.
On page 2, line 23, strike out "articles of clothing" and
insert in its place "clothing apparel"
Delayed Operational Date : In order to afford manufacturers and
retailers in California more time to adopt practices to comply
with these labeling requirements, the author has amended the
bill to become operative on September 1, 2011, if enacted,
rather than the original date of January 1, 2011.
REGISTERED SUPPORT / OPPOSITION :
Support
Humane Society of the United States (sponsor)
American Society for the Prevention of Cruelty to Animals
(ASPCA)
Consumer Action
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334