BILL ANALYSIS �
SB 646
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Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
SB 646 (Pavley) - As Amended: June 20, 2011
SENATE VOTE : 30-5
SUBJECT : Toxics: enforcement: lead jewelry.
SUMMARY : Makes the signatories to the amended consent judgment,
People vs. Burlington Coat Factory Warehouse Corporation, et
al. , and to similar judgments, subject to the enforcement
provisions of the Metal-Containing Jewelry Law. Covers "tie
clip" under the Metal-Containing Jewelry Law. Specifies that a
manufacturer or supplier of jewelry is required to prepare the
certification of compliance with the Metal-Containing Jewelry
Law.
EXISTING LAW :
1)Under the Safe Drinking Water and Toxic Enforcement Act of
1986 (Proposition 65), requires the State to publish a list of
chemicals known to cause cancer or birth defects or other
reproductive harm. Lead and cadmium are on this list.
Requires businesses to notify consumers about listed chemicals
in the products they purchase, in their homes or workplaces,
or that are released into the environment.
2)Under the Metal-Containing Jewelry Law,
a) Defines terms, including:
i) "Amended consent judgment" as the amended consent
judgment in the consolidated action entitled People vs.
Burlington Coat Factory Warehouse Corporation, et al.
(Alameda Superior Court Lead Case No. RG 04-162075) that
was entered by the court on June 15, 2006.
ii) "Jewelry" as any of the following ornaments worn by
a person: an anklet; arm cuff; braclet; brooch; chain;
crown; cuff link; hair accessory; earring; necklace; pin;
ring; body piercing jewelry; and, jewelry placed in the
mouth for display or ornament.
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b) Prohibits the manufacture, shipping, sale, or offering
for sale or promotional purposes of jewelry, children's
jewelry, or jewelry used in body piercing that is not made
entirely from certain specified materials (specified limits
of lead and cadmium).
c) Authorizes the Department of Toxic Substances Control
(DTSC) to enforce the Metal-Containing Jewelry Law.
d) Requires a manufacturer or supplier of jewelry sold or
offered for sale in this state to do either of the
following:
i) Provide a certification that attests that the
jewelry does not contain a level of lead or cadmium that
would prohibit the jewelry from being sold or offered for
sale to a person who sells or offers for sale that
manufacturer's or supplier's jewelry, upon the request of
that person.
ii) Display the certification prominently on the
shipping container or on the packaging of jewelry.
e) Specifies that, except for violators who knowingly
violate the law, a person who violates the Metal-Containing
Jewelry Law is not subject to criminal penalties and is
only subject to specified administrative or civil
penalties.
f) Provides that a person who violates the Metal-Containing
Jewelry Law is liable for an administrative or a civil
penalty not to exceed $2,500 per day for each violation.
g) Provides that 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 the
Metal-Containing Jewelry Law is guilty of a misdemeanor
punishable by a fine of not less than $5,000 nor more than
$100,000, by imprisonment in a county jail for not more
than one year, or by both that fine and imprisonment.
h) Provides that a manufacturer or supplier of jewelry who
knowingly and with intent to deceive, falsifies any
document or certificate required to be kept or produced
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pursuant to the Metal-Containing Jewelry Law is subject to
a fine of not more than $50,000, by imprisonment in a
county jail for not more than one year, or by both that
fine and imprisonment.
i) Provides that a party that is a signatory to the amended
consent judgment, or a party that is signatory to a consent
judgment entered in the consolidated action entitled People
vs. Burlington Coat Factory Warehouse Corporation, et al .
(Alameda Superior Court Lead Case No. RG04-162075) that
contains identical or substantially identical terms as
provided in the amended consent judgment, is exempt from
enforcement pursuant to the Metal-Containing Jewelry Law,
and instead is subject to enforcement provisions of the
amended consent judgment.
FISCAL EFFECT : Unknown.
COMMENTS :
Need for the bill : According to the author's office, "In
California, concentrations of lead in jewelry were sharply
limited (Health and Safety Code �� 25214.1 - 25214.4.2).
Enforcement of this law began in 2007. Review of the
enforcement data reveals a significant loophole. Existing law
allows a large and increasing number of businesses to bypass
much of the statutory enforcement provisions and avoid financial
penalties for violations. This bill amends current law to
remove this loophole and provide enforcement equity for
violations to all."
Legislative history : AB 1681 (Pavley, Chapter 415, Statutes of
2006) created the Lead-Containing Jewelry Law, which prohibited
the manufacture, shipping, sale, or offering for sale of
jewelry, children's jewelry, or jewelry used in body piercing
that is made from materials with more than specified levels of
lead. AB 2901 (Brownley, Chapter 575, Statutes of 2008), among
other things, strengthened and expanded DTSC's enforcement
authority for the Lead-Containing Jewelry Law. SB 929 (Pavley,
Chapter 313, Statutes of 2010) added prohibitions for jewelry
containing cadmium to the Lead-Containing Jewelry Law, updating
the statute to become the Metal-Containing Jewelry Law.
AB 1681 intended to impose a standard for the amount of lead
allowed in jewelry that was equivalent to that allowed in the
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settlement that had been reached between the California Attorney
General (AG) and several California-based retailers ( People vs.
Burlington Coat Factory Warehouse Corporation, et al. ). Because
the bill was being considered at the same time that the
settlement of the AG's case was being finalized, the author
agreed to codify the terms of the agreement and exempt the
signatories from the Lead-Containing Jewelry Law, with the
belief that both the law and the settlement would have the same
effect. The intent was to hold California retailers that were
not parties to the lawsuit to the same jewelry standards as
those that were.
Background on the amended consent judgment : In June 2004, the
AG filed a lawsuit against several California-based retailers
alleging that they violated Proposition 65 by failing to warn
consumers about the health risks of exposure to the lead
contained in certain jewelry they were offering for sale.
Testing demonstrated levels of lead in the jewelry targeted in
the case that were well above the level that triggers the
requirement to provide a Proposition 65 warning to consumers.
In December 2004, the retailers agreed to mediation, and a
settlement was reached in January 2006. Shortly after the
original parties settled the lawsuit, the California Legislature
enacted the Lead-Containing Jewelry Law, which codified the
standards in the consent judgment for jewelry manufacturers,
distributors and retailers not subject to the Proposition 65
consent judgment.
In 2006, when the settlement was first announced, there were a
total of 113 signatories to the amended consent judgment. Since
that time, 126 additional parties have negotiated with the AG
and have been added to the settlement, with additional cases
being negotiated that may result in more parties being added.
Adding to the consent judgment virtually exempts companies from
having to comply with the lead provisions of the
Metal-Containing Jewelry Law.
Enforcement efforts: The Metal-Containing Jewelry Law has
essentially created a two-tiered system for enforcing lead in
jewelry violations. The amended consent judgment limits its
enforcement to only the AG or the plaintiffs (Center for
Environmental Health and As You Sow). DTSC has authority to
enforce provisions of the Law only for violators that are not
parties to the amended consent judgment.
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Parties to the original amended consent judgment or to a
subsequent one with identical or largely identical terms are
subject to enforcement under the amended consent judgment, which
provides that all observations of violations of the amended
consent judgment or similar agreements must be referred to the
AG's office. If the AG's office agrees within a certain time
period, a Notice of Violation (NOV) is issued to the offender.
The offender must respond and issue a Notice of Election of
Response (NOR) within 30 days of receipt of the NOV. If the NOR
is issued within 15 days, the NOV is uncontested, and a
corrective action plan is included, no fine is assessed.
Companies that are not parties to the original amended consent
judgment or to a subsequent one are subject to the enforcement
provisions of the Metal-Containing Jewelry Law. Under the
authority provided by the Law, DTSC conducts inspections of
jewelry retailers, importers and suppliers. The authorities
available to DTSC to enforce the Metal-Containing Jewelry Law
are those available under the Hazardous Waste Control Law, but
DTSC is limited to assessing a maximum administrative or civil
penalty of $2500 per day for each violation. An intentional
violation by manufacturers or suppliers can result in a fine of
between $5,000 - $100,000 and/or imprisonment of up to one year
and intentional document falsification can result in a fine of
up to $50,000 and/or imprisonment of up to one year.
Violations to date : According to data supplied by the AG and
DTSC and compiled by the authors office, from 2007 - 2010, the
AG's office issued approximately 80 NOVs regarding 150 - 200
pieces of jewelry. In most cases, parties to the amended
consent judgment or similar settlements responded promptly, did
not contest the violation, and therefore paid no fines. A total
of approximately $22,500 - $25,000 was collected in financial
penalties for 3 - 4 NOVs only. So far in 2011, the AG's office
has issued an additional 21 NOVs. Overall, about 46 companies
have been cited by the AG's office: 24 of these are repeat
offenders. These 24 have received almost 80% of the total NOVs
issued and have paid no or negligible fines.
DTSC issued an additional 35 NOVs to 32 entities in the first
quarter of 2011 and collected roughly $21,000 in fines, although
most of DTSC's cases remain "in-process". DTSC has also
required screening equipment to be purchased in two instances.
Enforcement limitations in the amended consent judgment : The
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limited enforcement provisions of the amended consent judgment
have created an incentive for additional jewelry retailers and
wholesalers to add onto the amended consent judgment to avoid
enforcement under the stricter Metal-Containing Jewelry Law.
Limitations of the judgment include: 1) A signatory that
responds to a notice of violation within 15 days and corrects
the violation can avoid monetary penalties; 2) If a signatory
responds to a notice of violation after 15 days, they would only
be required to correct the violation and pay a "contribution"
limited to $2500 per supplier from whom it purchased the
products; 3) Contributions from a signatory are limited to
$5,000 each 30-day period, but can escalate up to $7,500 for
each supplier to a maximum of $15,000 for each 30-day period; 4)
The amended consent judgment contains no escalated penalties
for a signatory that intentionally or repeatedly violates its
terms.
SB 646 removes the exemption for signatories to the amended
consent judgment from the Metal-Containing Jewelry Law and evens
the playing field for all California manufacturers, suppliers
and retailers.
REGISTERED SUPPORT / OPPOSITION :
Support:
Breast Cancer Fund
California Safe Schools
Clean Water Action
Consumer Federation of California
Consumers Union
Environmental Working Group
Planning and Conservation League
Sierra Club California
Opposition
None on file.
Analysis Prepared by : Shannon McKinney / E.S. & T.M. / (916)
319-3965
SB 646
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