BILL ANALYSIS �
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THIRD READING
Bill No: SB 646
Author: Pavley (D)
Amended: 4/6/11
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 7-0, 4/4/11
AYES: Simitian, Strickland, Blakeslee, Hancock, Kehoe,
Lowenthal, Pavley
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Toxics: enforcement: lead jewelry
SOURCE : Author
DIGEST : This bill has the effect of requiring parties
who were signatories to an amended consent judgment,
entitled People vs. Burlington Coat Factory Warehouse
Corporation, et al. , and those who signed later virtually
identical agreements to comply with the enforcement
provisions of the Lead-Containing Jewelry Law.
ANALYSIS :
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.
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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 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 subject to enforcement under the terms of the
consent judgment.
This bill deletes those provisions specifying that party
that is a signatory to the above-described amended consent
judgment, or consent judgment enacted in a specified
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consolidation action is subject to enforcement under the
terms of the consent judgment.
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 (AB 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 (AB 2901 �Brownley] Chapter 575, 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.
According to the Senate Environment Quality Committee
analysis, 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
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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 issued
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 statute
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 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.
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 and virtually all of those
issued under the consent judgment 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/13/11)
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California Safe Schools
Clean Water Action (called for amendment)
Consumer Union (as amended)
Environmental Working Group
Planning and Conservation League
Sierra Club California
ARGUMENTS IN SUPPORT : According to the author's office,
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 In Jewelry Law.
Enforcement of this law began in 2007. The author's office
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, including repeat violators.
DLW:do 4/13/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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