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Online Exclusive: California Court Approves Proposition 65 Settlement with Opt-In Provisions

November 1, 2005
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A California court has approved a Proposition 65 settlement with "opt-in" provisions.

A California Superior Court in San Francisco has approved a settlement between a distributor of glass and ceramicware and a private plaintiff regarding California Proposition 65 allegations related to lead and cadmium exposure and the non-food contact and lip/rim surfaces of glass and ceramicware. This settlement includes restrictions on the use of both lead- and cadmium-bearing colors and the out side non-lip/rim surface of glass and ceramic tableware, as well as for glass and ceramicware that is not for use with food or beverages, including fig-urines, decorative tiles and other products. The tentative settlement includes provisions allowing other parties to "opt-in" to the settlement by agreeing to the terms of the settlement and paying fees consisting of civil penalties, plain-tiff's attorneys' fees and settlement-related costs. The settlement provides for varying monetary fees based on the type and size of the settling "opt-in" party.

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, and these settlements do not bind any other company or individual other than the plaintiff and defendants who are party to each agreement. In all of the settlements, the defendants specifically disclaim that they violated Proposition 65 at all.

In addition to monetary penalties and attorneys' fees, the defendant and plaintiff in the "opt-in" settlement agreed to "reformulation" requirements related to the use of lead- and cadmium-bearing materials used to decorate glass and ceramicware. The settlement includes a provision for warnings as well as a provision whereby the defendant agrees to "reformulate" at least 80%of covered ware sold after December 31, 2006, while undertaking all commercially reasonable efforts to sell 100 percent "reformulated" products after that date. This may limit their ability in the future to select the warning method of Proposition 65 compliance. The settlement warning provisions cover specific warning language and positioning of warnings on packages, at the point ofsale, in mail order catalogs, on Internet websites, and in restaurants and bars.

A large number of similar Proposition 65 allegations remain to be either settled or litigated. Although there is no official state warning threshold for non-food contact surfaces of glass and ceramicware, Proposition 65 warnings are an option for companies to establish a defense against allegations that ware exposes consumers in California to lead or cadmium. For additional details, contact Andy Bopp atandyb@sgcd.org or (703) 838-2810.



Andrew Bopp is the public affairs director of the Society of Glass and Ceramic Decorators and is based in Alexandria, Va. The association represents approximately 300 members who decorate glass and ceramicware and vendors who supply materials and services to decorators. For more information, visit www.sgcd.org.

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