This post was prepared by Vanessa Adriance of Gibson Dunn.
Many manufacturers use lead and cadmium in costume jewelry for a variety of purposes. For example, lead can be used to make a piece of jewelry heavier, can brighten colors, and can help to stabilize or soften plastic components of jewelry. But jewelry containing these metals is subject to a variety of controls in California markets. First, lead and cadmium are both listed as carcinogens and reproductive toxicants under California’s Proposition 65, which mandates warnings on products that create “exposures” to any of more than 900 listed chemicals if that exposure exceeds certain levels. In the case of lead, this “safe harbor” level below which warnings are not required is set at .5 micrograms per day, and unwarned cadmium exposures are capped at 4.1 micrograms per day for oral exposures and .05 micrograms per day for inhalation exposures.
In addition to Proposition 65, which mandates a warning in the case of exposures exceeding safe harbor levels, lead and cadmium content in jewelry is also controlled by the state’s “Metal-Containing Jewelry” law, which is codified at California Health and Safety Code sections 25214.1 through 25214.4.2. The law began as a codification of a 2006 consent judgment in a Proposition 65 case addressing lead in jewelry, and was subsequently amended to include cadmium as well. It forbids the manufacture, shipping, selling, and offering for sale of jewelry in California unless the jewelry is made from a specific set of materials laid out in the law. (Cal. Health & Saf. Code § 25214.2.) It creates lead and cadmium restrictions for those materials, and establishes separate, lower lead and cadmium thresholds for “children’s jewelry” and “body-piercing jewelry.” For example, “children’s jewelry” sold or offered for sale in California may not contain any component or be made of any material that is more than 0.03% cadmium by weight. (Cal. Health & Saf. Code § 25214.2(d).)
The law applies to any person who manufactures, ships, sells, or offers for sale jewelry for retail sale in California. (Cal. Health & Saf. Code § 25214.2.) Businesses of all sizes are subject to the law, including large retail “box” stores, online stores and web sites, discount stores, craft stores, businesses selling children's jewelry in vending machines, tattoo shops, body piercing shops, people who make and sell their own jewelry, and mail order companies. Manufacturers and suppliers are required to provide certification that their jewelry does not contain cadmium or lead in violation of the law. This certification can be in the form of a certification document, or may be displayed or on the packaging of the jewelry or on the container in which it is shipped. (Cal. Health & Saf. Code § 25214.3.1.) This certification also provides an affirmative defense for retailers of jewelry, who may avoid liability for selling non-complaint jewelry if they can present a certification and show that they relied on the certification and did not know or have reason to know that the jewelry sold was in violation of the law. However, in order to use this defense, the retailer must also take immediate corrective action when it is notified of the violation, and may not have been found to be in violation of the law twice within the preceding three years. (Cal. Health & Saf. Code § 25214.3.2.)
Penalties for violating the metal-containing jewelry law can be quite harsh—up to $2,500 per day for each violation. (Cal. Health & Saf. Code § 25214.3(b)(1). Civil penalties “may be assessed and recovered in an administrative action filed with the Office of Administrative Hearings or in a civil action brought in any court of competent jurisdiction.” (Id.) In assessing the amount of penalty for a particular violation, the court or agency must consider a number of factors, including the nature and extent of the violation, the number and severity of the violation, the economic impact of the penalty on the violator, whether the violator took good-faith measures to comply with the law, when those measures were taken, the willfulness of the violator’s misconduct, the deterrent effect of the penalty on the violator and the community as a whole, and “any other factor that justice may require.” (Id. at subd. (b)(2).) The law also provides for criminal penalties for some manufacturers who violate the statute: manufacturers or suppliers who “knowingly and intentionally” provide jewelry violating the law are guilty of a misdemeanor punishable by a fine of not less than $5,000 and up to $100,000 or by imprisonment in a county jail for not more than one year. (Cal. Health & Saf. Code § 25214.3.3.) And a manufacturer or supplier who “knowingly and with intent to deceive, falsifies any document or certificate required to be kept or produced pursuant to” the law is subject to a fine of up to $50,000 and/or imprisonment in the county jail for up to a year. (Cal. Health & Saf. Code § 25214.3.4.
Unlike Proposition 65, California’s metal-containing jewelry law does not allow for citizen enforcement actions. Instead, California’s Department of Toxic Substances Control (“DTSC”) is charged with implementing and enforcing the Metal-Containing Jewelry law. DTSC has filed lawsuits seeking civil and injunctive relief against alleged violators of the law as recently as August of 2014. (See, e.g., People of the State of California v. OBEDEDOM, INC., Los Angeles Sup. Ct. case no. BC555788, 2014 WL 4411259.) Thus, failure to comply with the law can present real litigation and penalty risks for businesses and individuals engaged in the sale, manufacture, and distribution of jewelry in California. Businesses engaged in activities that might fall within the purview of the law should perform appropriate diligence and seek appropriate advice to reduce the likelihood of penalties and other negative consequences resulting from an alleged violation of this law.