Decorators agree to Proposition 65 settlements that vary significantly from previous settlements
April 2005
A glass and ceramic tableware marketer and a souvenir distributor have agreed to separate tentative settlements with a private plaintiff regarding California Proposition 65 allegations related to lead exposure and the outside surface of glass and ceramicware. Both settlements include restrictions on the use of cadmium-bearing colors and the outside non-lip/rim surface of glass and ceramicware. The tentative settlements must be approved by the Court and reviewed by the California Attorney General's office.
In contrast to the 1993 Proposition 65 settlements between the State of California and various defendants that established a uniform Proposition 65 warning threshold for food contact surfaces of glass and ceramicware, all Proposition 65 settlements regarding alleged lead exposure from the lip and rim area of glass and ceramic drinkware and the outside surfaces of glass and ceramicware have been negotiated by private plaintiffs and individual defendants. As a result, there are multiple settlements with multiple Proposition 65 warning thresholds. The largest group of defendants to date settled on August 31, 2004, and this group agreed to specific restrictions that are listed in SGCDpro's "Summary of California Proposition 65 Settlement Related to Lead and Cadmium Exposure from Outside Surfaces of Glass and Ceramic Drinkware."
Like the August 31, 2004 settlements, the latest tentative settlements do not bind any other company or individual other than the plaintiff and defendants who are party to each agreement. In addition to monetary penalties and attorneys' fees, the defendants and plaintiff in the April 2005 settlements agreed to "reformulation" requirements that are described in broad, general terms here. Although similar in nature, the reformulation requirements vary in each settlement; however, each settlement does include a schedule whereby a percentage of all ware sold by the defendants in California will be decorated with only reformulated decorating materials.
One of the new tentative settlements determines whether ware is reformulated using either a "Ghost Wipe" test with a result of no greater than 1 microgram/wipe for lead for ware not decorated in the lip/rim area; or decoration of ware using materials that contain no more than 0.06% lead or cadmium by weight. Reformulation of 80 percent of this defendant's ware is required by March 1, 2006 to avoid a second financial penalty.
The other tentative settlement determines whether ware is reformulated using either a "Ghost Wipe" test with a result of no greater than 1 microgram/wipe for lead and 4 micrograms/wipe for cadmium for ware not decorated in the lip/rim area; or decoration of ware using materials that contain no more than 0.06% lead by weight and 0.24% cadmium by weight. For decoration in the lip/rim area of drinkware, decorating materials must contain no more than 0.02% lead by weight or 0.08% cadmium by weight. The second settlement includes clauses whereby the defendant agrees to reformulate 60% of its products by January 1, 2006; 80% by January 1, 2007; and to make an effort to completely reformulate at a later date.
New Proposition 65 allegations
A large number of similar Proposition 65 allegations remain to be either settled or litigated including the ten most recent (as of May 4) 60-day notices that were filed on March 31, 2005. These recent allegations were related to claims of exposure to lead from the outside surface of beer and shot glasses, goblets, a "gourmet bottle" and other glassware. The companies named are primarily retailers, although an importer was also named.
SGCDpro is continuing ongoing efforts to urge the California Attorney General's office to involve itself in these cases in an attempt to develop a uniform standard. SGCDpro has also filed comments with the California Office of Environmental Health Hazard Assessment (OEHHA) relating to that agency's failure to provide adequate guidance regarding Proposition 65 warning thresholds and exposure routes. SGCDpro members can contact Andy Bopp, 703-838-2810, for more details.