Health & Welfare | Daily Report

California attorney general's officeLast June, the California attorney general's office ordered Rainbow Apparel to stop selling this necklace. The pendant was 46 percent lead; its clasp was 71 percent lead.

In an effort to close a loophole in California's law restricting lead in jewelry, Sen. Fran Pavley, D-Santa Monica, has quietly introduced legislation that would subject more than 200 retailers and suppliers to tougher financial penalties for selling lead-tainted jewelry.

The legislation follows a California Watch investigation that found the state had repeatedly cited Rainbow Apparel, a national retailer with 35 stores in California, for selling jewelry with illegal levels of lead. The report uncovered even more lead-tainted jewelry on store shelves, prompting the company to remove items nationwide and raising questions about the state's regulation of repeat offenders.

Since California began regulating lead in jewelry in 2007, the attorney general has issued more than 100 violations, the vast majority to repeat offenders. Although state law calls for fines of at least $2,500 a day per violation, those penalties almost never apply to repeat offenders because nearly all signed a settlement with the state.

Under the settlement, companies agreed to strict lead limits that became the basis of the state's law and paid $2.6 million to establish a jewelry-testing fund. As long as they promptly remove unlawful jewelry from stores, they are fined only if they rack up several violations involving the same supplier in a short time. No company – not even Rainbow Apparel, which has been cited for 28 violations in 18 months – has amassed enough violations to warrant financial penalty.

A provision in the law allows companies in the settlement to bypass its own fines. Pavley's bill, SB 646, would remove that provision so the state could fine any company on its first offense.

Pavley declined to be interviewed for this story. A spokeswoman said the senator would be happy to speak about the bill once it was further in the legislative process. The bill, introduced in February, has passed the state Senate and is awaiting committee assignment in the Assembly.

The legislation has won support from several consumer and environmental watchdog groups, including Consumers Union, which pushed for federal limits on lead in jewelry in 2008.

"There's a loophole in California that allows companies to get around the law and allows them to continue to make jewelry with lead in it, without penalty," said Elisa Odabashian, director of Consumers Union's West Coast office and state campaigns. "We want to close that loophole because lead in children's jewelry is dangerous to them."

Lead is a neurotoxin. Long-term and high exposure can damage the nervous system, brain, kidneys and reproductive system. Children are particularly vulnerable to the heavy metal.

Whether financial penalties would prevent repeated violations among companies in the settlement remains to be seen. Still, supporters are hopeful.

"If I were in business, and I were going to be fined over and over again for doing business outside the law, I would think twice about it," Odabashian said. "If they're as brazen as to do it with impunity now, will they continue? I hope not. But we have to do everything we can to make people follow the law and not give them ways around it."

Without fines for violations, there already has been a dramatic decrease in lead-tainted jewelry in California stores since state and federal regulations took place, according to the Center for Environmental Health, a nonprofit charged with testing jewelry and identifying violations for the state.

"By and large, most companies are doing a really good job with compliance," said Caroline Cox, research director at the center. Even Rainbow Apparel, she said, has cleaned up since its last violation in November. The retailer is screening its jewelry with the same kind of equipment the center and state use. "In a weird kind of way, the Rainbow story kind of shows (the law) is successful, even if it took a little longer than we would have wanted it to," she said.

The center's lawsuits were the basis of the state's settlement – a consent judgment that now includes more than 200 companies. California's current law was based largely on the terms of the settlement, which Cox said the center must continue to back. For the same reason, the attorney general's office, which enforces both the settlement and the state law, has taken no position on the bill.

The legislation so far has gone virtually unnoticed by the jewelry industry.

Jeffrey Margulies, an attorney who represents Rainbow and several other companies in the settlement, said he had not heard about the bill until contacted by California Watch. He said he had not yet been authorized to speak about it.

Retailers and jewelry vendors will almost certainly oppose the legislation. But they may have little recourse. For companies that settled with the state, the bill may be unfortunate, but it's not illegal, said Bertrall Ross, an assistant professor at UC Berkeley Boalt Hall School of Law and expert on legislative interpretation and implementation.

"The Legislature can pass a law that in a sense supersedes a settlement and imposes potentially greater obligations," he said. "That's one of the risks you take in any settlement that touches upon a broader issue that can be subject to regulation."