Companies must opt-in by April 15, 2011

We would like to alert you to another Proposition 65 settlement containing an opt-in provision regarding lead in fashion accessories (Center for Environmental Health (CEH) v. Lulu et al.) This is the latest in several rounds of opt-ins in the CEH v. Lulu case. 

An opt-in allows a company that has not been sued, or that has already received a 60-Day Notice from CEH, to become a party to a court-approved settlement and have the benefits of its terms and release. 

The settlement, known as a Consent Judgment, was approved by the Court on March 1, 2011. The opt-in period ends on April 15, 2011.

The following categories of fashion accessories are covered by the Consent Judgment:

• wallets, handbags, purses, or clutches

• footwear

• belts

The categories selected by each company joining the Consent Judgment are known as the “Covered Products” for purposes of injunctive relief.

Companies that are subject to the Consent Judgment may not sell, purchase, import, manufacture, or supply Covered Products in California that contain lead in excess of the following limits:

• Paint or other Surface Coatings on Accessible Components: 90 parts per million (ppm)

• Leather Accessible Components: 600 ppm, and by December 1, 2011: 300 ppm;

• PVC Accessible Components: 300 ppm, and by December 1, 2011: 200 ppm;

• All other Accessible Components (other than cubic zirconia), crystal, glass, or rhinestones: 300 ppm

In addition, a date for “final retail compliance” is included in the Consent Judgment and provides other deadlines regarding when a company can “sell or offer for sale in California” Covered Products that exceed the lead limits listed above.

If your company has already received a 60-Day Notice of Violation of Proposition 65 (“Notice”) from CEH, or if there is pending action against your company by CEH regarding these types of fashion accessories, it can join this settlement. Similarly, if your company has not yet received a Notice from any entity regarding these types of fashion accessories, it may opt-in to this settlement.

The required payment to opt-in varies depending on (1) the number of types of fashion accessories to which the Consent Judgment will apply (one, two, or three categories); and (2) whether your company was named in a pre-suit Notice of Violation from CEH on or before August 11, 2010, that alleged the presence of lead in any type of fashion accessory. The payment required based on these factors ranges from $45,000 to $70,000.

Companies who wish to opt-in will receive the benefits of the settlement terms, including a compliance schedule, lead content limits, and a release for past sales that protects both the company and its customers. However, a company should carefully assess the pros and cons of the joining the Consent Judgment before taking any action to opt-in.