Major US retailers are facing actions over allegedly harmful materials – could it change the way clothes are made?

Two ongoing actions involving over 100 retailers across the U.S. are expected to set significant precedents for claims filed under a Californian law that mandates warning labels.

California’s Proposition 65 requires products containing above-threshold-level of chemicals to provide warnings labels.

What is happening?

The Center for Environmental Health (CEH) has brought two multi-party actions against large U.S. retailers for alleged violations of California’s Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code Section 25249.6 (Proposition 65).  Specifically, CEH alleges that above-tolerance-level Bisphenols (BPA) were found in certain styles of sports socks and sports bras sold by retailers.

In turn, some of those retailers are requesting indemnity from suppliers.

“These cases may set important precedents for similar Proposition 65 actions and interesting law will result.” – KWM Partner, Vincent Filardo, Jr.

How does Proposition 65 work?

Under Proposition 65, businesses must add warning labels to products sold to Californians that have, or where Californians have significant exposure to, chemicals “known to the State of California to cause cancer and / or reproductive harm, and birth defects or other reproductive harm”.

CEH is a non-profit organization that holds itself out as an advocate and watchdog for consumers rights and environmental health.  It has brought hundreds of cases in California state courts alone.

These cases are driven by the existence of the rather broad statute and the resulting opportunity for plaintiff’s lawyers to litigate.  This is typical of California which is a statutory law driven state.

What next?

The case involving sports bras commenced by CEH in California Superior Court in February 2023 is in the preliminary stages. It follows a companion case filed by CEH in early 2022 (larger scale, involving over 90 defendants) against many of these same defendants alleging similar Proposition 65 violations concerning sports socks that were made primarily of the same materials.  The recent action will likely follow the same path as the 2022 action.

These actions will be significant in that none of the large retailers wish to settle given that would require agreeing to injunctive relief mandating the placement of a cancer-causing warning label on their garments.

Among other things, these cases may help further clarify the interpretation of and test the boundaries set by Proposition 65, and may lead to product reformulations across the nation.

This statute is unique to California so there will be no impact outside of California unless another state adopts a similar statute. The environmental agency is based in California and is litigating in California for that reason: because of Proposition 65.

It is likely that another 1 to 2 years will pass before trial, based on the nature of the case; followed by at least another 9 to 12 months to get through post-trial motions and appeal.

We are watching the case as it develops.