Lawsuit claims big sellers of sports bras, other athletic apparel violate Prop 65 by not warning of BPA

A new lawsuit under California's controversial Prop 65 law has taken aim at a collection of popular clothing and apparel makers, accusing them of allegedly improperly exposing Californians to the chemical Bisphenoal A in sports bras and other clothing containing spandex.

The Center for Environmental Health (CEE), a non-profit corporation, filed a new lawsuit against Athleta LLC; The North Face Apparel Corp.; VF Corporation; VF Outdoor LLC; The Gap, Inc.; Victoria's Secret & Co.; Asics America Corporation; Nike, Inc.; Target Corporation; Target Brands, Inc.; Fila USA., Inc.; New Balance Athletics, Inc.; Mizuno USA, Inc. Mizuno USA, Inc.; Reebok International Ltd., LLC; Authentic Brands Group LLC; and unspecified unnamed others in San Francisco County Superior Court on Feb. 9. 

CEE is targeting sports bras and athletic shirts made primarily of polyester with spandex worn by females. CEE is claiming that while sports bras and athletic shirts can be made without BPA, the products in question allegedly contain sufficient quantities of BPA so as to pose a risk to the individuals exposed through average use. Plaintiffs assert that the defendants knowingly exposed individuals to BPA and continue to do so without reasonable warnings regarding the reproductive toxicity of BPA.

Plaintiffs claim the defendants failed in each case to provide sufficient warning labels on their products containing BPA. Despite being issued a "Notice of Violation" more than 60 days prior to a formal complaint filed in compliance with Prop 65 instructing them to provide warning labels on any products containing BPA, CEE is accusing the defendants of continued intentional negligence claiming they intended for people to come into contact with their garments.

Violations of Proposition 65 can be costly. With the burden of proof on defendant business owners a difficult mantle to wear, most cases settle out of court.

Critics question who the real winners are in these claims, asking if massive settlements under the law merely allow lawyers garner the spoils of relatively easy lawsuits to win. Annual reports from the California Attorney General's office in 2019 show that of 1,000 notices of violations served, close to $30M was paid to resolve claims either out of court or by consent, yet only $3.3M went to the Office of Environmental Health Hazard Assessment (OEHHA) of the California EPA while a nearly whopping $24M went to attorney fees and costs.

The lawsuit seeks a trial by jury and is seeking civil penalties in the amount of $2,500 per day for each violation, court costs and legal fees.

Plaintiff is represented by Mark N. Todzo and Meredyth Merrow, of the Lexington Law Group,  of San Francisco.