Since April 2019, Center for Environmental Health (CEH), an activist group long known for using Proposition 65 litigation to run through entire industries to affect change, began to issue Proposition 65 notices alleging the presence of CR6 in consumer products made with leather materials. These Notices follow the European Union's adoption of regulations limiting the amount of hexavalent chromium in leather articles that contact the skin to 3 mg/kg, based on studies finding that hexavalent chromium causes dermatitis in humans at concentrations exceeding that level. Previously, hexavalent chromium was primarily a concern for environmental exposures through inhalation, but Prop 65 plaintiffs are now relying on the EU studies, as well as reports indicating that Chromium III can be transformed into and emit CR6, to target leather consumer products based on dermal exposure.
Chromium III containing substances are used as a tanning agent in 80-95% of worldwide leather production. Tanning with Chromium III is preferred over vegetable tanning because it can be accomplished more quickly and cheaply, and also the resulting leather can be thinner and more supple than leather tanned using vegetable tannins. Under certain conditions, Chromium III can transform to hexavalent chromium, a chemical that requires a Proposition 65 warning. One Danish study found that 44% of reviewed articles made with Chromium III emitted more than the EU maximum of 3 mg/kg of CR6. In April and May 2019, CEH issued notices to 14 companies that either sold or distributed leather gloves, alleging the presence of CR6. In July 2019, CEH issued notices to 13 additional companies for leather footwear allegedly containing CR6. No litigation has been filed yet, but CEH has a policy to only settle via consent judgments that contain reformulation standards that often go beyond the regulatory requirements. Thus, we would expect CEH to file probably in Alameda Co. Superior Court, Complex Division, and relate all of the cases. Using the litigation, their modus operandi is to develop the exposure standards they will accept, and include "reformulation" requirements in lieu of allowing warnings. Companies that do not reformulate but choose to provide warnings are usually required to pay up to three or four times the amount than companies who agree to reformulate. CEH also includes requirements that will allow the enforcer to monitor the settling defendant's compliance over time. For example see, Center for Environmental Health v. LULU NYC LLC, Inc., Alameda Co. Super. Ct., RG 09-459448 (filed 2009), establishing safe harbor content levels for lead in leather products, and synthetic leather products. CEH has for a decade filed follow-on litigation against scores of signatory companies to enforce the consent judgment whose products exceed the levels of allowable lead agreed to in the consent judgment without provision of a warning.
If you or your suppliers are selling or manufacturing leather products cured with Chromium III, you may wish to determine whether you are at risk for being pulled into this litigation. Steptoe is handling several CR6 cases currently, and assisting our clients with evaluating product compliance. Please contact us if we can be of assistance.