A Shift in Global Creativity!
March 6, 2019
March 6, 2019
May 2018
"PROTECT YOURSELF"
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June 2018
"PROTECT YOURSELF"
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HOT BUTTON ISSUES - California’s Proposition 65
More than 40 retailers, including Macy’s, J.C. Penney, Saks, Kohls, Sears, Dress Barn, Limited, H&M, New York & Co., etc. paid $1.7 Million in settlements in 2010 by entering into a consent judgment issued by the Superior Court of the California, Alameda County, and brought by the Center for Environmental Health (CEH). Payments from each defendant averaged $48K, with legal fees in the $30K range. In other cases, wholesale brand holders and distributors settled suits when they were found to be in violation.
What is Proposition 65?...an Update
Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986) is a law that imposes requirements for goods made, distributed or sold in the State of California. It applies to all businesses with 10 or more employees doing business in California, and is seen as the most stringent chemical control and consumer protection statute in the nation. The Proposition 65 list contains prominent industrial chemicals, additives and/or ingredients in common household and office products, toys, jewelry, foods, drugs, dyes, pesticides, solvents, as well as some trimmings attached to apparel. The listed chemicals may also be used in manufacturing and construction, or they may be by-products of production or combustion processes. Proposition 65 requires that any person exposed to one or more of the chemicals on the list first receive a warning that the state has determined the chemical in question may cause cancer, birth defects and/or reproductive harm.
WHAT IS ‘CLEAR AND REASONABLE WARNING’
Reasonable warning under Proposition 65 is defined to be “reasonably calculated, considering the alternative methods available under the circumstances, to make the warning message available to the individual prior to exposure. The message must clearly communicate that the chemical in question is known to the state to cause cancer, or birth defects or other reproductive harm…”
The warning message must include the following language:
“WARNING: This product contains a chemical known to the State of California to cause cancer.”
and/or
“WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.”
The warning may be by one or more of the following methods:
*Label or other labeling on product;
*Shelf labeling, hang tags, signs, menus, or a combination thereof; and/or
*A system of signs, public advertising identifying the system, and toll-free information services
Note: By label or sign, the warnings shall be prominently placed upon a product’s label or other labeling or displayed at the retail outlet with such conspicuousness as to render it likely to be read and understood by an ordinary individual under customary conditions of purchase or use.
ENFORCEMENT Proposition 65 allows private persons or organizations to bring actions against alleged violators of the Act on behalf of the “general public,” after providing notice to the California Attorney General and local prosecutors. If the Attorney General or local prosecutor does not take action within 60 days after the notice issues, the private party may then file a lawsuit. A business targeted by a bounty hunter for Proposition 65 enforcement will first receive a 60-Day Notice of Violation and Intent to Sue, which is intended to give the Attorney General and local prosecutor the opportunity to intervene in the action.
LIABILITY Failure to comply with Proposition 65’s strict warning requirements can lead to fines of up to $2,500 per day, per violation, with bounty hunters keeping 25% of the penalty amounts. Plaintiffs also are entitled to reimbursement of their costs of bringing a Proposition 65 suit, including their attorney fees, which is often the real reason private parties bring these actions. The majority of Proposition 65 claims are resolved through settlements (e.g., a consent judgment).
AVOIDING LITIGATION Effective compliance strategies begin with a thorough audit of a business’ operations and products to determine what, if anything, may be implicated by Proposition 65’s requirements. A business should assess whether it releases (environmental exposure), or its products contain (products exposure) Proposition 65-listed chemicals - even in trace concentrations. Although implementation of a compliance strategy will not necessarily immunize a business for past Proposition 65 violations of future enforcement actions, it will minimize the accrual of any additional potential liability from non-compliance.
Why so many settlements?
*Warning labels may be required for trace chemicals whose presence is unknown to the business at the time of sale. Thus, liability mounts before the business is aware of the violation;
*Plaintiffs’ lawyers are experienced at forcing settlement; and
*Trials are expensive and unpredictable
RECENT TRENDS
Cadmium
Benzene
Acrylamide
De (2-ethylhexyl)phthalate (DEHP)
Lead (Approximately 80% of all notices of violation in the past 12 months involved lead)
Polyvinyl chloride (PVC)
LIMITING LIABILITY
Upstream Indemnification
Testing
Monitoring trends in Proposition 65 litigations
Insurance
Source: Presentation by Michael Fisher and Russell Allyn of Buchalter Nemer, July 2010
To paraphrase an old adage, “when one door opens, another one closes”. Most of the recent articles and quotes from expert fashion reviewers seem to be missing the point. Yes, there is the internet, giving anyone who cares instant access to runway styles and fashion advice, and, yes, it is “a platform for a new generation of style arbiters”, as Booth Moore stated in her article in the Los Angeles Times on Sunday, September 13. The question is ‘who’ cares? The consumers with the most disposable income are not those who depend upon the style arbiters; they are going to buy what they need, if they see what they want at the right time, based on a reasonable trend assessment and its relevance to their lifestyles.
The reality is that the general buying public is no longer obsessed with the world of fashion, and is getting bored with looking at the same airbrushed faces; female and male. Fashion magazines, once the bible of ‘what to wear for the next season”, are struggling financially because their advertisers are looking for the return-on-investment. Clearly, if the readership was responding to the visuals in the magazine, advertisers would re-think their marketing dollars. But the readers are not buying what they are showing! Those who are obsessed with being ‘in’ are not equating the fact that one can buy a new printer/copier for the cost of a Marc Jacobs T-shirt. ....and a Coach handbag clearly has replaced a Vuitton as the ‘aspirational’ purchase of the day.
The phrase, ‘global strategy’ is a misnomer in this new phase of branding and merchandising. One fashion viewpoint does NOT fit all! Luxury brands are finding that the world of fast-fashion and pop culture are stealing their status as arbiters of style...especially when runway coverage depends on regurgitating ‘sharp-shoulders’, bell bottoms, and back-to-the-future silhouettes for editorial news. It becomes increasingly clear that everything old is not new again.
In plain English, the bigger the boom, the bigger the bust. Every economic crisis since the 40s had striking similarities to the current environment. These prior episodes were followed by a multi-year credit expansion, culminating in a banking system crisis, followed by credit contraction - all the result of borrowers emboldened to increase their indebtedness and lenders prepared to stretch their balance sheets. Some economists are predicting that we will not return to the inflation-adjusted peak until 2016. The key risk to our industry may come from the law of unintended consequences. Current pessimism about the earning capacity of an individual or a small business could become so acute that firms and households refuse to borrow, even when credit is available...the paradox of thrift.
To open the door for fashion related companies requires a total re-invention of the way business is being done, including new credit mechanisms, and a focus on the customer, both retailer and consumer, with CASH to spend.
Whatever happened to 8/10- E.O.M.?