EXPERT OPINION

Most of the people working in “shoe biz” never thought they’d have to spend their working hours deciphering legal and governmental jargon or educating themselves about almost a thousand toxic chemicals, but thanks to both CPSIA and California’s Prop 65, that’s exactly what many retailers are discovering is now part of the job. With footwear the latest product to come under fire for possibly containing harmful chemicals, it’s imperative that not only brands but retailers know exactly what their products are made of – or risk the consequences. WSAToday.com talked to Nate Herman, the senior director of international trade for the American Apparel and Footwear Association (AAFA), about what industry professionals must know now.

What is Prop 65?
It’s a California-based labeling law that says that, if you sell your product in California and it contains one of 850 chemicals, you must either eliminate the chemical from your product or put a warning label on it that says that the product is known to contain chemicals that cause cancer and reproductive harm.

When did this start?
The law has been on the books in California since 1986, but it didn’t affect footwear until six months ago, when a few footwear products were accused on breaking the law.

So some government agency is going to come to my store?
“The reason this law is of particular concern is how it’s enforced, which is not through the Attorney General or a state office, but by citizen enforcers; non-profit groups or individuals who can allege a product violates the law. To do so, they have to issue a 60-day notice, stating that they will initiate a lawsuit against the business or company in 60 days. The Center for Environmental Health issued a notice against up to 20 shoe brands and retailers alleging that the footwear contained lead. Under Prop 65, you can have a limited amount of lead in the product, but it essentially bans the chemical. Almost all of these cases have been settled out of court, and the incentive for this agencies or individuals is that they receive up to a third of the settlement and all of their legal fees are paid for.

What’s the difference between Prop 65 and CPSIA?
CPSIA only deals with products sold to children ages 12 and younger. But the point of both of these laws are meant to protect children. With lead, for it to cause any detrimental effect, you have to put it in your mouth and chew on it. The idea that this is an issue for adult women’s footwear is pretty hard to accept.

I don’t live in California. Why should I care about this?
Other states are looking at Prop 65 and creating their own laws and guidelines based on it. It’s not going away, but being applied on a state-by-state basis. Illinois, Washington, Connecticut and Colorado are all trying to adopt part or all of California’s laws.

If the brand I work with doesn’t tell me their shoe has lead in it, I’m off the hook, right?
Prop 65 affects everyone in the supply chain. When groups or individuals write up these 60-day notices, they name both the brands themselves and the retailers selling the brands. They’re both on the hook, and the average settlement in 2008 for individual companies was $125,000 including legal fees. In one case concerning phthalates, it’s expected to be $100,000 each. So this can be costly, but there are ways to deal with this before you’re named in a notice.

Oh no! I’ve received a 60-day notice! What can I do?
Unfortunately, if you have been named, you’re pretty much out of luck. It’s up to you to prove you didn’t violate the law, which accounts for why so many companies settle. This drives home why it’s so important for footwear brands and retailers to be aware of the law and educate themselves to the ways they can work with the law as well. Everyone needs to pay attention to this.

So I just need to ask my brands if their products are Prop 65 compliant, right?
It’s not that simple. Everyone needs to work together, and everyone needs to have a good understanding of what the law is so that they can do exactly that.

Nate Herman is the senior director of international trade for the American Apparel and Footwear Association (AAFA). AAFA is the premiere national trade association representing apparel, footwear and other sewn products companies, and their suppliers, which compete in the global market. Representing approximately 80 percent of wholesale apparel sales of U.S. companies, it is one of the strongest national trade associations and includes manufacturers of allied needle trade products, as well. Its membership has plants located in almost every state in the union. Activities include advocacy toward Congress and federal agencies, as well as strong programs in economics, education, technology, government affairs, marketing, communications and industry relations. Industry executives pool their resources and talent as part of AAFA's programs, committees and services. Find out more at www.apparelandfootwear.org

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