Leather / Chromium Settlement FAQ
This FAQ answers questions regarding the recently approved Prop 65 consent judgment resolving enforcement claims over hexavalent chromium in leather gloves and footwear and provides guidance to companies that are considering opting into the settlement. For further information, please see the links and contacts at the end of this FAQ.
What is the settlement?
This industry-wide settlement resolves claims brought by the Center for Environmental Health against a number of brands and retailers over alleged exposure to hexavalent chromium in leather gloves and footwear. Hexavalent chromium is not used to tan or manufacture leather, but can be created under certain environmental conditions from residual trivalent chromium in the leather after the tanning process. The settlement requires participating companies to use only leather from “certified tanneries.” CEH and the participating companies believe that the tanning practices used at certified tanneries will prevent or inhibit the oxidation process that can lead to formation of hexavalent chromium on the surface of chrome-tanned leather.
On February 21, 2024, the settlement was approved by the Alameda Superior Court. The court also approved a process by which companies can voluntarily agree to participate in the settlement (known as the opt-in process), and obtain its significant benefits.
What are the benefits of opting into the settlement?
A company that voluntarily opts into the settlement and complies with its requirements will be deemed by court order to be in compliance with Prop 65 with regard to potential exposures to hexavalent chromium from gloves and/or footwear that it manufactures, distributes, or sells as of the date the court approves the opt-in. It will also get a release from Prop 65 liability for all leather gloves and/or footwear manufactured, distributed, or sold before that effective date. These provisions are intended to be binding on all other private enforcers.
So long as the company uses only leather from certified tanneries, its leather gloves and/or footwear do not need to have Prop 65 warnings for hexavalent chromium.
What does the settlement require participating companies to do?
- The settlement requires participating companies to take one or more of the following actions for skin contact components of chrome-tanned leather that are used to make certain gloves or footwear (“covered products”):
- Source leather used to make skin contact components from a certified tannery; or
- Ensure that skin contact components in covered products purchased from factories or other suppliers were sourced from a certified tannery.
What is a certified tannery?
- A certified tannery is one that either:
- certifies compliance with the approved tanning protocol; or
- is Gold medal certified under the Leather Working Group (LWG) Audit Protocol (P.7.2.2 or higher) or in the Restricted Substances, Compliance & Chromium VI Management module of the LWG Audit Protocol.
What are covered products that must contain leather from certified tanneries?
Covered products are gloves or footwear with chrome-tanned leather components that come into direct contact with the average user’s skin under normal and foreseeable use.
What is a skin contact component?
A skin contact component is a chrome-tanned leather component that comes into direct contact with the skin of the average user’s hand or foot while the covered product is being worn. These include chrome-tanned leather insoles, tongues, liners, unlined uppers, or straps for footwear, as well as unlined gloves, or gloves lined with chrome-tanned leather. A chrome-tanned leather upper is not considered a skin contact component of a shoe that has a lining made of non-leather materials.
Is there a testing requirement?
No. Covered products do not have to be tested to be compliant with the settlement.
Do I have to certify leather used in components that are not skin contact components?
The settlement does not require certification for components that are not skin contact components.
Does the settlement require certification for leather gloves or footwear that do not contain chrome-tanned skin contact leather components (e.g., leather gloves lined with non-leather materials)?
No.
What else does the settlement require?
Each company participating in the settlement must make monetary payments that are based on their sales of covered products, how many types of products they wish to be covered by the settlement, and whether they owe a court-imposed initial appearance fee. The required payments are:
Sales are determined by unit sales in California (i) from July 1, 2022 to June 30, 2023 or (ii) if not available, during calendar year 2022. It is acceptable to provide an estimate of California unit sales based on a percentage of national sales of covered products (12% by population) or shipments of covered products to California customers, regardless of where those products may be ultimately sold at retail.
The settlement payments above include civil penalties, additional settlement payments to CEH, and plaintiff’s attorneys’ fees and costs.
Also, for entities that are not already parties to the pending CEH actions in which the settlement will be entered, the court will require (i) a signed stipulation to consent to the court’s jurisdiction, and (ii) payment of an appearance fee of US$435 per case to which the entity will be added.
The settlement payments above include civil penalties, additional settlement payments to CEH, and plaintiff’s attorneys’ fees and costs.
Also, for entities that are not already parties to the pending CEH actions in which the settlement will be entered, the court will require (i) a signed stipulation to consent to the court’s jurisdiction, and (ii) payment of an appearance fee of US$435 per case to which the entity will be added.
Who is eligible to participate?
A business can opt into the settlement if it (i) has 10 or more employees and (ii) manufactures, distributes, or sells one or more covered products that the entity knows or has reason to believe may be sold or offered for sale in the State of California, or has done so in the past.
How do I participate?
A business that wishes to opt into the settlement must submit a notice of intent to opt in (along with the information it requests), a signed consent judgment, and the required settlement payments by July 10, 2024. Instructions on this process along with a form of the notice to intent can be found here.
In order to participate in the settlement, the business must have received a Prop 65 notice of violation from CEH more than 60 days before the settlement is approved. If the business has not received a Prop 65 notice over hexavalent chromium in leather and/or gloves from CEH, it must contact CEH’s counsel to discuss what supporting factual information the company will need to provide. Such evidence could include analytical testing results indicating the presence of detectable levels of hexavalent on the surface of one or more of the company’s covered products. Note that for purposes of the settlement, a hexavalent chromium test using ISO method 17075-2 with a result reported below the official reporting limit of 3 mg/kg will be sufficient to support a notice of violation, without any admission of liability.
Where can I get more information or a copy of the opt-in form?
You can get further information, including a copy of the settlement, the form for the notice of intent to opt into the consent judgment, and further instructions here.
You can contact the following with questions:
Leather Opt-In Coordinator leather@lexlawgroup.com Lexington Law Group LLP Counsel for Plaintiff Center for Environmental Health
Jeffrey Marguliesjeff.margulies@nortonrosefulbright.com213-892-9286Defense Liaison Counsel