BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1656 (Ma and Lieu)
As Amended March 23, 2010
Hearing Date: June 15, 2010
Fiscal: No
Urgency: No
BCP:jd
SUBJECT
Fur Products: Labeling
DESCRIPTION
This bill would require a person who sells or displays any
clothing apparel for sale that is made wholly or partially of
fur to attach a conspicuously displayed tag or label that
includes the following information:
the names of the animal or animals from which the fur
was acquired;
the country of origin of any imported furs used.
This bill would subject violators to a civil penalty of not more
than $500 for the first violation, and not more than $1,000 for
each subsequent violation.
This bill would provide that a retail merchant is not liable for
a violation if a manufacturer or supplier for the merchant
provided a specified certification to that merchant.
BACKGROUND
In 1951, Congress enacted the Fur Products Labeling Act, which
requires the labeling of fur garments. Those labels must
include, among other things, the name of the species,
manufacturer, and county of origin. That Act also contained an
exemption for products with a "relatively small quantity or
value" of fur - the Federal Trade Commission has applied that
exemption to: (1) fur products where the cost to the
manufacturer for the fur does not exceed $150; or (2) fur
products where the selling price does not exceed $150.
(more)
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According to recent testimony by Michael Markarian, Chief
Operating Officer of the Humane Society of the United States,
the prices for pelts range from $5 for a rabbit to around $150
for a bear or timber wolf. As a result of that low cost for
pelts, many fur garments are not covered by the labeling
requirements of the federal Fur Products Labeling Act.
This bill, sponsored by the Humane Society of the United States,
seeks to address the gap in coverage under federal law by
requiring all clothing apparel, regardless of price, that is
made wholly or partially of fur to be labeled or tagged.
CHANGES TO EXISTING LAW
Existing federal law , the Fur Products Labeling Act, 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. Those and other
related acts are deemed unlawful, are an unfair method of
competition, and an unfair and deceptive practice in commerce
under the Federal Trade Commission Act. (15 U.S.C. 69 et seq.;
15 U.S.C. 41 et seq.)
Existing federal regulation exempts a fur product from the
requirements of the Fur Products Labeling Act if: (1) the cost
to the manufacturer of any fur trim or other manufactured fur or
furs contained in a fur product does not exceed $150; or (2) if
a manufacturer's selling price of a fur product does not exceed
$150. That exemption is not applicable:
to any dog or cat fur product;
if any false, deceptive, or misleading representations
as to the fur contained in the fur product are made; or
if any representations as to the fur are made in the
labeling, invoicing, or advertising 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 substantial part of
paws, tails, bellies, or waste fur. (16 C.F.R. 301.39.)
Existing federal regulation provides that when a fur product is
exempt, the manufacturer shall maintain records showing the cost
of the fur used in the product, or copies of invoices showing
the selling price, if that price is used as the basis for
exemption. (16 C.F.R. 301.39.)
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Existing federal law defines "fur product" as any article of
wearing apparel made in whole or in part of fur or used fur, as
specified. (15 U.S.C. 69(d).) Existing federal regulation
defines "wearing apparel" as any articles of clothing or
covering for any part of the body, which includes 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. (16 C.F.R.
301.1.)
This bill would prohibit a person from selling or displaying for
sale any coat, jacket, garment, or other clothing apparel made
wholly or partially of fur, regardless of the price of the
apparel or the amount or value of the fur contained therein,
without attaching a conspicuously displayed tag or label that
includes the following:
the names of the animal or animals, as set forth in the
Fur Products Name Guide maintained by the Federal Trade
Commission, from which the fur was acquired; and
the country of origin of any imported furs used.
This bill would specify that labeling of clothing apparel 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.
This bill would not apply to a person that displays for sale,
offers for sale, or sells any used article of clothing made
wholly or partly of animal fur.
This bill would provide that any violation of this act is
subject to a civil penalty of not more than $500 for the first
violation, and not more than $1,000 for each subsequent
violation. Each article of clothing that is not labeled
constitutes a separate violation.
This bill would provide that a retail merchant is not liable for
a violation of this act if a manufacturer or supplier for the
merchant certified to that merchant, in the invoice or other
written document describing the clothing apparel, that any tag
or label attached by the manufacturer or supplier conforms to
the requirements of this act, unless the retail merchant knew,
or reasonably should have known, that the certification is
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false.
This bill would state that nothing in this act shall be
construed to preempt any federal law, or any other statute that
prohibits or restricts the sale of fur products. If any
provision of this act or the application thereof to any person
or circumstance is held to be preempted by federal law, the
preemption shall not affect other provisions or applications of
the title that can be given effect.
This bill would become operative on September 1, 2011.
COMMENT
1. Stated need for the bill
According to the author:
More than 1,000,000 items of clothing or accessories that
contain animal fur are sold in the United States each year.
The federal Fur Products Labeling Act and related
regulations require all garments with real animal fur valued
at more than $150 to indicate species and country of origin
on clothing labels. However, federal law exempts from
labeling requirements products with animal fur valued at
$150 or less. The Federal Trade Commission estimates that 1
in 8 fur-trimmed garments are exempt from fur labeling.
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 garment manufacturers' ability to
piece together cheap leftover fur pelts, it is common for
garments trimmed with real fur to be 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 the label.
2. Closing the "loophole" in federal law
The federal Fur Products Labeling Act generally requires the
labeling of fur products that enter into commerce and the
failure to do so is considered an unfair and deceptive act or
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practice under the Federal Trade Commission Act. (15 U.S.C 69
et seq.) Federal regulations exempt fur products from those
labeling requirements if: (1) the cost of the fur in a fur
product does not exceed $150 to the manufacturer of the finished
product; or (2) a manufacturer's selling price of the fur
product does not exceed $150. That exemption does not apply if
there is dog or cat fur in the product, in the case of any
false, deceptive or misleading representation, or if
representations as to the fur are made in the labeling,
invoicing, or advertising without disclosing specified
information. Considering that the last exemption applies only
where a product that would otherwise be exempt is labeled - the
federal regulations arguably act to disincentivize the labeling
of exempt products.
This bill seeks to address that "loophole" in federal law which
exempts fur products from those labeling requirements if the
cost of the fur, or the product, does not exceed $150. The
Humane Society of the United States, sponsor, contends that the
gap in the application of federal law "exempts about 1 in 8
fur-trimmed garments from having to reveal anything about the
animal fur - it simply is not mentioned on the label." To
address that issue, this bill would require the labeling of
clothing apparel made wholly or partially of fur regardless of
price. That broad labeling requirement would not only fill in
the gap in federal law but also technically apply to products
that are currently covered under the federal Fur Products
Labeling Act. (See Comment 3.)
3. Overlap with the federal Fur Products Labeling Act and its
implementing regulations
By requiring the labeling of all clothing apparel that is made
wholly or partially of fur, AB 1656 would technically require
the labeling of both garments that are exempted from federal law
and those which are required to be labeled under the Fur
Products Labeling Act. Although this bill would directly
overlap with regards to apparel that is not exempted from the
Fur Products Labeling Act, the labeling requirements imposed by
both provisions appear compatible. Thus, a retailer that
complies with federal law would meet the requirements of AB
1656.
a. Labeling consistent with federal law
This bill would require a tag or label to include the names of
both of the following: (1) the animal or animals, as set forth
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in the Fur Products Name Guide maintained by the Federal Trade
Commission, from which the animal fur was acquired; and (2)
the country of origin of any imported furs used. Those two
requirements are consistent with the federal requirements
contained in 15 U.S.C. 69b(2)(A) and (F).
It should be noted that federal law does require information
in addition to the two elements required by AB 1656, including
whether the clothing contains used or artificially colored
fur, or if it is composed in whole or in substantial part of
paws, tails, bellies, or waste fur. From a policy standpoint,
the two disclosures required by this bill (type of animal and
country of origin) appear to be the items of most interest to
consumers who may currently be unaware that they are
purchasing a product that contains real animal fur.
This bill would permit the labeling of clothing apparel to be
accomplished by adding the disclosures to a permanent or
temporary tag, or by affixing a sticker in a conspicuous
place. Although federal law does not contain the same level
of specificity with regards to labeling, labels that are
provided under federal law in the above fashion would appear
to meet both requirements.
b. Preemption
Pursuant to the supremacy clause contained in Article VI of
the United States Constitution, the law and treaties made by
the federal government are the supreme law of the land. Since
federal law is supreme, when there is a conflict between state
and federal law, federal law prevails (or in other words,
"preempts" state law.).
There are several different types of preemption - the two most
common being express preemption and implied preemption.
Express preemption occurs where Congress specifically includes
language providing that State law is preempted. Implied
preemption occurs in several circumstances, including where
federal law is "so pervasive as to make reasonable the
inference that Congress left no room for the States to
supplement it," (Rice v. Santa Fe Elevator Corp. (1947) 331
U.S. 218, 230.), where compliance with both federal and state
law is impossible, and where state law impedes the achievement
of a federal objective.
In this case, federal law requires the labeling of fur
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products but exempts specified products based upon the sales
price or the value of the fur. AB 1656 applies labeling
requirements to those products, but also applies those same
requirements to those already covered by federal law. The
federal Fur Products Labeling Act does not contain any
specific language either permitting states to enact similar
labeling requirements or prohibiting states from doing so. It
also appears possible to comply with both AB 1656 and federal
law (although federal labeling requirements are more
comprehensive), and AB 1656 does not appear to impede the
achievement of the objective of the federal Act (unless that
objective was to not label the exempted products). Despite
that apparent compatibility, this bill would still enact a
provision in state law that would directly overlap with
federal law - if any question is raised as to which prevails,
the federal law would be supreme.
The author further asserts that five other states have passed
similar legislation - New York, Massachusetts, New Jersey,
Delaware, and Wisconsin. Committee staff notes that no
information has been provided, or discovered, which indicates
that similar legislation in those states has been found to be
preempted.
It should also be noted that AB 1656 contains a savings clause
that would act to preserve non-preempted provisions or
applications of the bill should it be found to be preempted by
federal law. That provision also includes a statement that
"[n]othing in this title shall be construed to preempt any
federal law, or any other statute that prohibits or restricts
the sale of fur products." Since state law cannot preempt
federal law, that provision would essentially codify the
existing principle that federal law prevails under the
supremacy clause.
4. Consumer impact of unlabeled fur and false advertising
Regarding the prevalence of unlabeled and falsely advertised fur
clothing, the Humane Society of the United States (HSUS)
contends:
An ongoing investigation by The HSUS over the last three
years has revealed that retailers including Nordstrom,
Loehmann's, Rocawear, Bluefly, and Saks Fifth Avenue were
selling falsely advertised and unlabeled fur-trimmed
jackets. The brands involved included Oscar de la Renta,
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Rocawear, and Burberry. Several of these jackets were sold
as "faux" fur when they were in fact raccoon dog, domestic
dog, or rabbit fur. Others were advertised as "raccoon" or
"rabbit" fur when in fact the fur was raccoon dog. Other
unlabeled animal fur garments were found in stores including
Burlington Coat Factory, Ross and TJ Maxx, by brands
including Sean John, Bill Bass and Nicole Miller.
The policy question raised by this bill is whether consumers
should be informed about the fur contained within their garment.
Those consumers, in general, may have difficulty determining
whether a product in a store contains real or fake fur. For
those with allergies, or ethical objections to purchasing real
fur, the disclosure required by AB 1656 would provide valuable
information. That disclosure would also serve to highlight the
use of certain animals, such as the raccoon dog, which the
sponsor asserts is "perhaps the most widely unlabeled and
misrepresented species in the United States." The author adds
that "[m]any consumers and salespeople currently mistake
unlabeled animal fur to be fake. Consumers have a right to know
what they are buying, especially concerning a material that so
many strongly object to."
With regards to false advertising of fur products, the civil
penalties included in the bill would provide an additional
deterrent and a mechanism for enforcement officials to address
those violations of the bill's labeling requirements. (See
Comment 6.)
5. Scope
The labeling requirements of this bill would apply to "clothing
apparel," which is defined as any articles of clothing or
covering for any part of the body. That definition would
essentially cover items that are worn. Other items, such purses
or accessories would not be subject to the labeling
requirements. It should be noted that federal law similarly
defines fur product as "any article of wearing apparel made in
whole or in part of fur or used fur." (15 U.S.C. 69 (d).
The bill would also not apply to used clothing that is made
wholly or partially of animal fur. That exemption would protect
second hand stores, flea markets, garage sales, and other
circumstances where a person has purchased a fur item and the
label or sticker that was affixed by the original manufacturer
has subsequently fallen off.
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6. Remedies
This bill would further provide that violators are subject to a
civil penalty of not more than $500 for the first violation, and
not more than $1,000 for each subsequent violation. The bill is
silent on who can seek that civil penalty, but, as a general
rule, civil penalties are recoverable by certain public officers
(city attorney, district attorney, county counsel, or Attorney
General). The process of those officers bringing enforcement
actions would likely be complaint driven.
To address issues relating to the receipt of goods from a
manufacturer or suppliers, this bill would provide that a retail
merchant is not liable for a violation if their manufacturer or
supplier certified that any tag or label attached by that
manufacturer or supplier complies with the requirements of the
bill. That exemption from liability would not apply if the
merchant knew, or should have known, that the certification was
false. Considering the merchant would likely not have direct
knowledge as to how their products were constructed, that
liability provision would appear to protect their "good faith"
reliance upon a manufacturer or supplier. Additionally, the
"knew, or should have known," language would appear to address a
situation where a manufacturer flagrantly violates the bill or
remains willfully ignorant of the fur contained within their
garments.
7. Federal legislation also being sought to close the
"loophole" in federal law
In addition to the present bill, the Humane Society of the
United States is also seeking the passage of the Truth in Fur
Labeling Act (H.R. 2480). That Act similarly seeks to close the
above discussed "loophole" in federal law that permits fur
garments to go unlabeled if the value of the fur is less than
$150.
Support : One individual
Opposition : None Known
HISTORY
Source : Humane Society of the United States
Related Pending Legislation : None Known
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Prior Legislation : None Known
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 59, Noes 11)
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