We would like to alert you of a recent Proposition 65 settlement impacting the fashion industry regarding the use of DEHP in adult accessories. The parties in the lawsuit have entered into a settlement agreement, which has been submitted to the court for approval. Under the terms of the settlement, the parties have agreed to comply with a DEHP content limit of 1000 parts per million (ppm).  

If approved by the court, the settlement will also provide an opt-in opportunity for additional companies. The court may approve the settlement as early as November 3, 2010. Companies who wish to opt-in will receive the benefits of the settlement terms, including a compliance schedule, DEHP content limits, and a release for past sales that protects both the company and its customers. The terms of the settlement were a result of an industry-wide joint defense representation in which Greenberg Traurig’s Sacramento office played a prominent role in representing a number of the initial settling defendants.  

The fashion accessory categories covered by the settlement include:  

  • Wallets, coin or bill holders;  
  • Handbags, purses, clutches, or totes;  
  • Jewelry;  
  • Belts;  
  • Footwear;  
  • Apparel, including gloves and headwear;  
  • Key holders, keychains, and key caps;  
  • Luggage tags and ID cases;  
  • Bag charms and zipper pulls;  
  • Covering cases for electronic devices;  
  • Cosmetics cases and bags; and  
  • Toiletry cases and bags.  

Products primarily intended for children under 12 years of age and sauna suits are excluded from the settlement. Compliance with the DEHP standard of 1000 ppm starts December 15, 2011. Companies interested in joining the settlement through the opt-in program must do so by January 31, 2011.  

Plaintiff's counsel has confirmed the following monetary terms of the settlement, which remain subject to court approval:  

  • For opt-in defendants who have not received a 60-day notice or had a complaint filed against them, the settlement amount is $28,000 for as many categories as the Opt-in Defendant chooses. This is the amount if the defendant opts in by December 15, 2010. If the same defendant waits to opt-in until after December 15, 2010 (but before the deadline of Jan. 31, 2011), the amount increases to $36,000. According to plaintiff's counsel, this is to encourage companies to optin early.
  • For opt-in defendants who have already received a 60-day notice, the settlement amount is $46,000 for all categories, or $36,000 for one category.  
  • For opt-in defendants who have had a complaint filed against them that is pending, the settlement amount is $66,000 for all categories, or $56,000 for one category.  

As you can see, if your company is interested in participating in this opt-in, there are advantages to getting in early before the December 15, 2010, deadline and before the plaintiff has an opportunity to serve your company with a 60-day notice and/or a complaint.