Chicago Fashion Foundation

Federal, California Rules

While lead in consumer products is not banned, lead levels are increasingly regulated. The
Federal Hazardous Substances Act, 15 U.S.C. § 1261, provides that household products that expose children to hazardous quantities of lead under reasonably foreseeable conditions of handling or use are hazardous substances. Pursuant to an enforcement policy announced in 2005, the Consumer Product Safety Commission may conduct a screening test and seek to recall any product with a component part having a lead content. In December, 2006, the Consumer Product Safety Commission announced its intention to go even further by writing a new rule for children’s jewelry containing more than .06 percent lead by weight, banning it outright.

California has been in the forefront on the state level. Proposition 65, California’s major consumer disclosure statute, requires that consumers be warned of potential health risks by proper labeling or other means where the consumer products sold in the state contain levels of chemicals determined by the state to present a risk to public health. Proposition 65 is a powerful statute because it permits not only the government but also consumers to bring enforcement actions when they discover consumer products being sold at retail without proper warnings. Lead is a listed substance under Proposition 65.

In June, 2004, California’s Attorney General filed a lawsuit against more than a dozen major retailers, including Macy’s, Target, Wal-Mart, Nordstrom and Claire’s, among others, claiming that they had violated Proposition 65 by failing to warn the public about the health risks of exposure to high levels of lead contained in jewelry being sold in their stores. The retailers settled the lawsuit, agreeing to pay damages, establish a jewelry testing fund and fund an educational program to increase consumer awareness about the risks of lead exposure. They agreed further that they would not sell products with lead levels at or exceeding 600 ppm in metal or 200 ppm in plastic components. The settling retailers also agreed that they would inform their suppliers and require that they eliminate or significantly reduce the lead content in their products. While legally binding only in California, accessories suppliers should expect that national retailers will impose these criteria on a national basis.

What To Do?

What should an accessories supplier do to manage lead-related risks? The first step is being aware that lead is a potential problem. Get information about the components of your products at the earliest possible stage, preferably before the product is introduced into commerce, to lessen potential costs down the road. Learn whether lead is present and at what levels by testing the product.

The best solution is to make your products lead free. If that is not possible, the Guidance published by the U.S. Consumer Product Safety Commission is instructive. It advises that consideration be given to the following factors: the amount of lead in the product; the age
and foreseeable behavior of the intended consumer; the foreseeable duration of exposure and the life cycle of the product. If the product creates issues in these areas, make sure that it comes with the required warnings. If the product is in distribution and lead levels are too high, consider a voluntary recall. Taking early corrective action will safeguard the public, the brand and your business relationships.

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