Jane Doe v. Match.com

Filing 8

REQUEST FOR JUDICIAL NOTICE re First EX PARTE APPLICATION for Temporary Restraining Order as to prohibiting defendant Match.com from allowing further member contact until such time as an appropriate screening process has been implemented prohibiting known sex offenders from registeri 6 - Request for Judicial Notice in Support of Opposition to Plaintiff's Ex Parte Application for a Temporary Restraining Order and for Order to Show Cause Re: Preliminary Injunction filed by Defendant Match.com. (Laska, Joseph)

1
2
3
4
5
6
7

MANATT, PHELPS & PHILLIPS, LLP
ROBERT H. PLATT (Bar No. 108533)
Email: [e-mail]
JOSEPH E. LASKA (Bar No. 221055)
Email: [e-mail]
11355 West Olympic Boulevard
Los Angeles, California 90064-1614
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
MATCH.COM, LLC,
erroneously sued as Match.com

8
9

UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11
12

JANE DOE, individually, and on
behalf of all others similarly situated,

13
14
15

Plaintiff,
vs.
MATCH.COM,

16

Defendant.

17
18
19

Case No. CV11-3795 SVW (JEMx)
Hon. Stephen V. Wilson
Filed as Class Action
REQUEST FOR JUDICIAL NOTICE
IN SUPPORT OF OPPOSITION TO
PLAINTIFF’S EX PARTE
APPLICATION FOR A
TEMPORARY RESTRAINING
ORDER AND FOR ORDER TO
SHOW CAUSE RE: PRELIMINARY
INJUNCTION

21

Filed concurrently with:
1. Opposition to Ex Parte Application;
2. Declaration of Sharmistha Dubey; and
3. Declaration of Robert H. Platt.

22

Action filed:

20

23
24
25
26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250712.1

REQUEST FOR JUDICIAL NOTICE

April 13, 2011

1
2

REQUEST FOR JUDICIAL NOTICE
Defendant Match.com, LLC (“Match”) respectfully submits this Request for

3

Judicial Notice in support of its Opposition to the Ex Parte Application for a

4

Temporary Restraining Order and for an Order to Show Cause re: Preliminary

5

Injunction filed by Plaintiff Jane Doe.

6

Match requests that the Court take judicial notice of Exhibits A and B, which

7

are versions of California State Assembly Bill 1681 introduced during the 2005-06

8

legislative session. Exhibit A is the original version of the bill introduced on

9

February 22, 2005. Exhibit B is the final version of the bill chaptered on

10

September 22, 2006. These documents were obtained from the California

11

Legislative Counsel’s website at www.leginfo.ca.gov.

12

Courts regularly take judicial notice of the histories of bills introduced in the

13

California Legislature. See, e.g., Daghlian v. DeVry Univ., Inc., 574 F.3d 1212,

14

1213 (9th Cir. 2009) (“We grant DeVry's motion to take judicial notice of the

15

Complete Bill History of S.B. 823 . . . .”).

16
17

Dated: May 5, 2011

18

MANATT, PHELPS & PHILLIPS, LLP
ROBERT H. PLATT
JOSEPH E. LASKA

19
20

By: /s/ Joseph E. Laska
Joseph E. Laska
Attorneys for Defendant
MATCH.COM, LLC,
erroneously sued as Match.com

21
22
23
24
25
26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250712.1

1
REQUEST FOR JUDICIAL NOTICE

EXHIBIT A

california legislature—2005–06 regular session

ASSEMBLY BILL

No. 1681

Introduced by Assembly Members Pavley, Bermudez, and
Negrete McLeod
February 22, 2005

An act to add Chapter 33 (commencing with Section 22948) to
Division 8 of the Business and Professions Code, relating to online
services.
legislative counsel’s digest

AB 1681, as introduced, Pavley. Online relationship services.
Existing law provides for the regulation of various businesses.
This bill would require online relationship service providers, as
defined, to either conduct criminal background checks for each
member using the service before allowing that person to communicate
with another person through the service or disclose to all Web site
visitors residing in the state that the provider has not conducted
criminal background checks. The bill would authorize the Attorney
General to bring an action for a violation of these provisions, and
would make a provider that violates these provisions guilty of a
misdemeanor, punishable by a fine of $250 for each day the violation
continues. The bill would exempt a provider that conducts criminal
background checks in compliance with these provisions from civil
liability for the actions of its members.
Because this bill would make the failure to meet specified
requirements a crime, it would impose a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.

99

AB 1681

—2—

Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote:   majority. Appropriation:   no. Fiscal committee:   yes.
State-mandated local program:   yes.
The people of the State of California do enact as follows:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30

SECTION 1.  Chapter 33 (commencing with Section 22948) is
added to Division 8 of the Business and Professions Code, to
read:
Chapter 33.  Online Relationship Services
22948.  (a)  For purposes of this section, the following
definitions apply:
(1) “Communicate” means to directly contact a person, through
an online relationship service provider, in writing using the
electronic transmission of free form text or using real-time voice
communication.
(2)  “Criminal background check” means a search of a person’s
felony and sexual offense convictions through a regularly
updated system or other collection of public records operated and
maintained in the United States with substantial national
coverage and more than 170 million criminal and sexual offender
records.
(3)  “Member” means any person who is either a member or
who submits a profile or other information for the purpose of
dating, matrimonial, or social referral services to a particular
online relationship service provider.
(4)  “Online relationship service provider” or “provider” means
a person or entity engaged, directly or indirectly, in the business,
for profit, of offering, promoting, or providing access to dating,
relationship, compatibility, matrimonial, or social referral
services principally on or through their Web site or otherwise
through the Internet.
(b)  An online relationship service provider that provides
services to residents of the state shall do one of the following:

99

—3—

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39

AB 1681

(1)  Conduct a criminal background check for each member
using the online relationship service before allowing that person
to communicate with another person through the online
relationship service.
(2)  Disclose prominently to all Web site visitors residing in the
state that the online relationship service provider has not
conducted criminal background checks on its members or other
persons using its service.
(c)  If the provider conducts criminal background checks
pursuant to paragraph (1) of subdivision (b), the provider shall
provide the following additional disclosure information through
a readily accessible link on the provider’s home page:
(1)  A description of the criminal background check database
used by the provider and, if the provider uses a private vendor to
conduct the criminal background check, a readily accessible link
to the page on the vendor’s Web site that describes the contents
of its database.
(2)  An acknowledgment that criminal background checks are
supplemental information for the member and should not be
considered a substitute for reasonable precaution whenever
meeting another person.
(3)  An acknowledgment that only felony convictions and not
arrests are covered by the criminal background check.
(4)  An acknowledgment that a person can commit crimes
without ever having a prior criminal conviction.
(5)  A description of additional safety measures reasonably
designed to increase awareness of safer dating practices.
(6)  A statement clearly declaring whether or not the provider
excludes from its Web site all persons identified as having a
conviction for a felony or sexual offense.
(d)  If the provider chooses to disclose that it does not conduct
a criminal background check pursuant to paragraph (2) of
subdivision (b), the disclosure shall meet all of the following
requirements:
(1)  The prominent disclosure shall appear to all Web site
visitors residing in the state in the following locations:
(A)  On the provider’s home page and on all other pages where
visitors or members are likely to first enter the provider’s Web
site.

99

AB 1681
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40

—4—

(B)  On the profile page for each member whose profile is
shown to residents of this state and for whom the provider has
not conducted a criminal background check.
(C)  At the beginning of all electronic mail messages sent or
received by communicating members residing in the state.
(2)  For the provider’s home page for each visitor from the
state, the disclosure shall take the following form: “WARNING:
[NAME OF PROVIDER] HAS NOT CONDUCTED FELONY
OR SEXUAL OFFENSE BACKGROUND CHECKS ON ITS
MEMBERS.”
(3)  For the profile page of each member shown to each visitor
from the state, and on all electronic mail sent by communicating
members to members of the state that go through the provider’s
service, the disclosure shall take the following form:
“WARNING: [NAME OF PROVIDER] HAS NOT
CONDUCTED
FELONY
OR
SEXUAL
OFFENSE
BACKGROUND CHECKS ON THIS INDIVIDUAL.”
(4)  The disclosure shall be in bold, capital letters in at least
12-point type and in clear contrast to the surrounding
background, and shall be located within three inches of the top of
each relevant Web page or electronic mail message.
(e)  If the provider chooses not to exclude a person with a
felony or sexual offense conviction, the provider shall
prominently display on the profile page of that person and on all
electronic mail from that person that go through the provider’s
service, when shown or sent to a member of this state, the
following notice, consistent with the requirements of paragraph
(4) of subdivision (d): “WARNING: THIS PERSON HAS BEEN
IDENTIFIED THROUGH OUR CRIMINAL BACKGROUND
CHECK TO HAVE A PRIOR FELONY OR SEXUAL
OFFENSE CONVICTION.”
(f)  A provider shall update the criminal background check for
each member at least once every 90 days.
(g)  A provider that violates this section is guilty of a
misdemeanor punishable by a fine of two hundred and fifty
dollars ($250) for each day that the requirements of this section
are not met. If the provider fails to meet the requirements of this
section for any of its members or visitors, each failure shall
constitute a separate violation for each member or visitor for
whom the required disclosure is not provided. The Attorney
99

—5—

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

AB 1681

General may bring an action against a provider that has violated
this section.
(h)  A provider that conducts criminal background checks in
compliance with the provisions of this section shall not be
subject to civil liability on the basis of the actions of one or more
of its members.
SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.

O
99

EXHIBIT B

Assembly Bill No. 1681
CHAPTER 415
An act to add Article 10.1.1 (commencing with Section 25214.1) to
Chapter 6.5 of Division 20 of the Health and Safety Code, relating to toxic
substances.
[Approved by Governor September 22, 2006. Filed with
Secretary of State September 22, 2006.]

legislative counsel’s digest

AB 1681, Pavley. Lead-containing jewelry.
Existing hazardous waste control laws regulate the disposal of discarded
appliances, lead acid batteries, small household batteries, recyclable latex
paint, and household hazardous waste, except as provided in the hazardous
waste control laws and regulations. The Department of Toxic Substances
Control (department) is required to enforce those hazardous waste control
laws. Existing law provides for the Hazardous Waste Control Account in
the General Fund and authorizes the funds deposited in that account to be
expended, upon appropriation by the Legislature, for specified purposes,
including the administration and implementation of the hazardous waste
control laws by the department.
This bill would prohibit a person, on and after March 1, 2008, from
manufacturing, shipping, selling, or offering for sale jewelry for retail sale
in the state, unless the jewelry is made entirely from specified materials.
The bill would also prohibit any person, on and after September 1, 2007,
from taking those actions with regard to children’s jewelry, as defined,
unless the children’s jewelry is made entirely from certain specified
materials.
The bill would also prohibit a person, on and after March 1, 2008, from
manufacturing, shipping, selling, or offering for sale body piercing
jewelry, as defined, for retail sale in the state unless it is made from
specified materials.
The bill would provide that a party to a specified amended consent
judgment or to a consent judgment entered in a specified consolidated
action is deemed to be in compliance with the bill’s provisions, and would
require any action brought against that party to be subject to the amended
consent judgment.
The bill would exclude a person who violates these prohibitions from
the criminal penalties imposed pursuant to the hazardous waste control
laws and would instead provide that a person who violates those
prohibitions would be liable for a civil penalty not to exceed $2,500 per
day for each violation. The bill would require all civil penalties collected
be deposited in the Hazardous Waste Control Account, for expenditure by

92

Ch. 415

—2—

the department, upon appropriation by the Legislature, to implement and
enforce those prohibitions.
The bill would specify the testing methods and protocols for
determining compliance with these prohibitions and would authorize the
department to adopt regulations that modify these testing protocols as it
deems necessary to further the purposes of the bill.
The people of the State of California do enact as follows:
SECTION 1. Article 10.1.1 (commencing with Section 25214.1) is
added to Chapter 6.5 of Division 20 of the Health and Safety Code, to
read:
Article 10.1.1. Lead-Containing Jewelry
25214.1. For purposes of this article, the following definitions shall
apply:
(a)  “Amended consent judgment” means the amended consent
judgment in the consolidated action entitled People vs. Burlington Coat
Factory Warehouse Corporation, et al. (Alameda Superior Court Lead
Case No. RG 04-162075) that was entered by the court on June 15, 2006.
(b)  “Body piercing jewelry” means any part of jewelry that is
manufactured or sold for placement in a new piercing or a mucous
membrane, but does not include any part of that jewelry that is not placed
within a new piercing or a mucous membrane.
(c)  “Children” means children aged six and younger.
(d)  “Children’s jewelry” means jewelry that is made for, marketed for
use by, or marketed to, children. For purposes of this article, children’s
jewelry includes, but is not limited to, jewelry that meets any of the
following conditions:
(1)  Represented in its packaging, display, or advertising, as appropriate
for use by children.
(2)  Sold in conjunction with, attached to, or packaged together with
other products that are packaged, displayed, or advertised as appropriate
for use by children.
(3)  Sized for children and not intended for use by adults.
(4)  Sold in any of the following:
(A)  A vending machine.
(B)  Retail store, catalogue, or online Web site, in which a person
exclusively offers for sale products that are packaged, displayed, or
advertised as appropriate for use by children.
(C)  A discrete portion of a retail store, catalogue, or online Web site, in
which a person offers for sale products that are packaged, displayed, or
advertised as appropriate for use by children.
(e)  (1)  “Class 1 material” means any of the following materials:
(A)  Stainless or surgical steel.

92

—3—

Ch. 415

(B)  Karat gold.
(C)  Sterling silver.
(D)  Platinum, palladium, iridium, ruthenium, rhodium, or osmium.
(E)  Natural or cultured pearls.
(F)  Glass, ceramic, or crystal decorative components, including cat’s
eye, cubic zirconia, including cubic zirconium or CZ, rhinestones, and
cloisonne.
(G)  A gemstone that is cut and polished for ornamental purposes,
except as provided in paragraph (2).
(H)  Elastic, fabric, ribbon, rope, or string, unless it contains
intentionally added lead and is listed as a class 2 material.
(I)  All natural decorative material, including amber, bone, coral,
feathers, fur, horn, leather, shell, wood, that is in its natural state and is not
treated in a way that adds lead.
(J)  Adhesive.
(2)  The following gemstones are not class 1 materials: aragonite,
bayldonite, boleite, cerussite, crocoite, ekanite, linarite, mimetite,
phosgenite, samarskite, vanadinite, and wulfenite.
(f)  “Class 2 material” means any of the following materials:
(1)  Electroplated metal that meets the following standards:
(A)  On and before August 30, 2009, a metal alloy with less than 10
percent lead by weight that is electroplated with suitable under and finish
coats.
(B)  On and after August 31, 2009, a metal alloy with less than 6 percent
lead by weight that is electroplated with suitable under and finish coats.
(2)  Unplated metal with less than 1.5 percent lead that is not otherwise
listed as a class 1 material.
(3)  Plastic or rubber, including acrylic, polystyrene, plastic beads and
stones, and polyvinyl chloride (PVC) that meets the following standards:
(A)  On and before August 30, 2009, less than 0.06 percent (600 parts
per million) lead by weight.
(B)  On and after August 31, 2009, less than 0.02 percent (200 parts per
million) lead by weight.
(4)  A dye or surface coating containing less than 0.06 percent (600
parts per million) lead by weight.
(g)  “Class 3 material” means any portion of jewelry that meets both of
the following criteria:
(1)  Is not a class 1 or class 2 material.
(2)  Contains less than 0.06 percent (600 parts per million) lead by
weight.
(h)  “Component” means any part of jewelry.
(i)  “EPA reference methods 3050B (Acid Digestion of Sediments,
Sludges and Soils) or 3051 (Microwave Assisted Digestion/ Sludge,
Soils)” means those test methods incorporated by reference in paragraph
(11) of subdivision (a) of Section 260.11 of Title 40 of the Code of Federal
Regulations.
(j)  “Jewelry” means any of the following:

92

Ch. 415

—4—

(1)  Any of the following ornaments worn by a person:
(A)  An anklet.
(B)  Arm cuff.
(C)  Bracelet.
(D)  Brooch.
(E)  Chain.
(F)  Crown.
(G)  Cuff link.
(H)  Decorated hair accessories.
(I)  Earring.
(J)  Necklace.
(K)  Pin.
(L)  Ring.
(M)  Body piercing jewelry.
(2)  Any bead, chain, link, pendant, or other component of an ornament
specified in paragraph (1).
(k)  (1)  “Surface coating” means a fluid, semifluid, or other material,
with or without a suspension of finely divided coloring matter, that
changes to a solid film when a thin layer is applied to a metal, wood,
stone, paper, leather, cloth, plastic, or other surface.
(2)  “Surface coating” does not include a printing ink or a material that
actually becomes a part of the substrate, including, but not limited to,
pigment in a plastic article, or a material that is actually bonded to the
substrate, such as by electroplating or ceramic glazing.
25214.2. (a)  On and after March 1, 2008, a person shall not
manufacture, ship, sell, or offer for sale jewelry for retail sale in the state
unless the jewelry is made entirely from a class 1, class 2, or class 3
material, or any combination thereof.
(b)  Notwithstanding subdivision (a), on and after September 1, 2007, a
person shall not manufacture, ship, sell, or offer for sale children’s jewelry
for retail sale in the state unless the children’s jewelry is made entirely
from one or more of the following materials:
(1)  A nonmetallic material that is a class 1 material.
(2)  A nonmetallic material that is a class 2 material.
(3)  A metallic material that is either a class 1 material or contains less
than 0.06 percent (600 parts per million) lead by weight.
(4)  Glass or crystal decorative components that weigh in total no more
than one gram, excluding any glass or crystal decorative component that
contains less than 0.02 percent (200 parts per million) lead by weight and
has no intentionally added lead.
(5)  Printing ink or ceramic glaze that contains less than 0.06 percent
(600 parts per million) lead by weight.
(6)  Class 3 material that contains less than 0.02 percent (200 parts per
million) lead by weight.
(c)  Notwithstanding subdivision (a), on and after March 1, 2008, a
person shall not manufacture, ship, sell, or offer for sale body piercing

92

—5—

Ch. 415

jewelry for retail sale in the state unless the body piercing jewelry is made
of one or more of the following materials:
(1)  Surgical implant stainless steel.
(2)  Surgical implant grade of titanium.
(3)  Niobium (Nb).
(4)  Solid 14 karat or higher white or yellow nickel-free gold.
(5)  Solid platinum.
(6)  A dense low-porosity plastic, including, but not limited to, Tygon or
Polytetrafluoroethylene (PTFE), if the plastic contains no intentionally
added lead.
25214.3. (a)  Notwithstanding this chapter, a person who violates this
article shall not be subject to any criminal penalties imposed pursuant to
this chapter and shall only be subject to the civil penalty specified in
subdivision (b).
(b)  (1)  A person who violates this article shall be liable for a civil
penalty not to exceed two thousand five hundred dollars ($2,500) per day
for each violation. That civil penalty may be assessed and recovered in a
civil action brought in any court of competent jurisdiction.
(2)  In assessing the amount of a civil penalty for a violation of this
article, the court shall consider all of the following:
(A)  The nature and extent of the violation.
(B)  The number of, and severity of, the violations.
(C)  The economic effect of the penalty on the violator.
(D)  Whether the violator took good faith measures to comply with this
article and the time these measures were taken.
(E)  The willfulness of the violator’s misconduct.
(F)  The deterrent effect that the imposition of the penalty would have
on both the violator and the regulated community as a whole.
(G)  Any other factor that justice may require.
(c)  All civil penalties collected pursuant to this article shall be
deposited in the Hazardous Waste Control Account, for expenditure by the
department, upon appropriation by the Legislature, to implement and
enforce this article.
(d)  Notwithstanding subdivision (b), a party to the amended consent
judgment, or a party to a consent judgment entered in the consolidated
action entitled People vs. Burlington Coat Factory Warehouse
Corporation, et al. (Alameda Superior Court Lead Case No. RG
04-162075) that contains identical or substantially identical terms as
provided in Sections 2, 3, and 4 of the amended consent judgment, shall be
deemed to be in compliance with this article, and any action brought to
enforce this article against the party shall be subject to Section 4 of the
amended consent judgment.
25214.4. The testing methods for determining compliance with this
article shall be conducted using the EPA reference methods 3050B or 3051
for the material being tested, except as otherwise provided in Sections
24214.4.1 and 25214.4.2, and in accordance with all of the following
procedures:

92

Ch. 415

—6—

(a)  When preparing a sample, the laboratory shall make every effort to
assure that the sample removed from a jewelry piece is representative of
the component to be tested, and is free of contamination from extraneous
dirt and material not related to the jewelry component to be tested.
(b)  All jewelry component samples shall be washed prior to testing
using standard laboratory detergent, rinsed with laboratory reagent grade
deionized water, and dried in a clean ambient environment.
(c)  If a component is required to be cut or scraped to obtain a sample,
the metal snips, scissors, or other cutting tools used for the cutting or
scraping shall be made of stainless steel and washed and rinsed before
each use and between samples.
(d)  A sample shall be digested in a container that is known to be free of
lead and with the use of an acid that is not contaminated by lead, including
analytical reagent grade digestion acids and reagent grade deionized water.
(e)  Method blanks, consisting of all reagents used in sample preparation
handled, digested, and made to volume in the same exact manner and in
the same container type as samples, shall be tested with each group of 20
or fewer samples tested.
(f)  The results for the method blanks shall be reported with each group
of sample results, and shall be below the stated reporting limit for sample
results to be considered valid.
25214.4.1. In addition to the requirements of Section 25214.4, the
following procedures shall be used for testing the following materials:
(a)  For testing a metal plated with suitable undercoats and finish coats,
the following protocols shall be observed:
(1)  Digestion shall be conducted using hot concentrated nitric acid with
the option of using hydrochloric acid or hydrogen peroxide.
(2)  The sample size shall be 0.050 gram to one gram.
(3)  The digested sample may require dilution prior to analysis.
(4)  The digestion and analysis shall achieve a reported detection limit
no greater than 0.1 percent for samples.
(5)  All necessary dilutions shall be made to ensure that measurements
are made within the calibrated range of the analytical instrument.
(b)  For testing unplated metal and metal substrates that are not a class 1
material the following protocols shall be observed:
(1)  Digestion shall be conducted using hot concentrated nitric acid with
the option of using hydrochloric acid and hydrogen peroxide.
(2)  The sample size shall be 0.050 gram to one gram.
(3)  The digested sample may require dilution prior to analysis.
(4)  The digestion and analysis shall achieve a reported detection limit
no greater than 0.01 percent for samples.
(5)  All necessary dilutions shall be made to ensure that measurements
are made within the calibrated range of the analytical instrument.
(c)  For testing polyvinyl chloride (PVC), the following protocols shall
be observed:
(1)  The digestion shall be conducted using hot concentrated nitric acid
with the option of using hydrochloric acid and hydrogen peroxide.

92

—7—

Ch. 415

(2)  The sample size shall be a minimum of 0.05 gram if using
microwave digestion or 0.5 gram if using hotplate digestion, and shall be
chopped or comminuted prior to digestion.
(3)  Digested samples may require dilution prior to analysis.
(4)  Digestion and analysis shall achieve a reported detection limit no
greater than 0.001 percent (10 parts per million) for samples.
(5)  All necessary dilutions shall be made to ensure that measurements
are made within the calibrated range of the analytical instrument.
(d)  For testing plastic or rubber that is not polyvinyl chloride (PVC),
including acrylic, polystyrene, plastic beads, or plastic stones, the
following protocols shall be observed:
(1)  The digestion shall be conducted using hot concentrated nitric acid
with the option of using hydrochloric acid or hydrogen peroxide.
(2)  The sample size shall be a minimum of 0.05 gram if using
microwave digestion or 0.5 gram if using hotplate digestion, and shall be
chopped or comminuted prior to digestion.
(3)  Plastic beads or stones shall be crushed prior to digestion.
(4)  Digested samples may require dilution prior to analysis.
(5)  Digestion and analysis shall achieve a reported detection limit no
greater than 0.001 percent (10 parts per million) for samples.
(6)  All necessary dilutions shall be made to ensure that measurements
are made within the calibrated range of the analytical instrument.
(e)  For testing coatings on glass and plastic pearls, the following
protocols shall be observed:
(1)  The coating of glass or plastic beads shall be scraped onto a surface
free of dust, including a clean weighing paper or pan, using a clean
stainless steel razor blade or other clean sharp instrument that will not
contaminate the sample with lead. The substrate pearl material shall not be
included in the scrapings.
(2)  The razor blade or sharp instrument shall be rinsed with deionized
water, wiped to remove particulate matter, rinsed again, and dried between
samples.
(3)  The scrapings shall be weighed and not less than 50 micrograms of
scraped coating shall be used for analysis. If less than 50 micrograms of
scraped coating is obtained from an individual pearl, multiple pearls from
that sample shall be scraped and composited to obtain a sufficient sample
amount.
(4)  The number of pearls used to make the composite shall be noted.
(5)  The scrapings shall be digested according to EPA reference method
3050B or 3051 or an equivalent procedure for hot acid digestion in
preparation for trace lead analysis.
(6)  The digestate shall be diluted in the minimum volume practical for
analysis.
(7)  The digested sample shall be analyzed according to specification of
an approved and validated methodology for inductively coupled plasma
mass spectrometry.

92

Ch. 415

—8—

(8)  A reporting limit of 0.001 percent (10 parts per million) in the
coating shall be obtained for the analysis.
(9)  The sample result shall be reported within the calibrated range of
the instrument. If the initial test of the sample is above the highest
calibration standard, the sample shall be diluted and reanalyzed within the
calibrated range of the instrument.
(f)  For testing dyes, paints, coatings, varnish, printing inks, ceramic
glazes, glass, or crystal, the following testing protocols shall be observed:
(1)  The digestion shall use hot concentrated nitric acid with the option
of using hydrochloric acid or hydrogen peroxide.
(2)  The sample size shall be not less than 0.050 gram, and shall be
chopped or comminuted prior to digestion.
(3)  The digested sample may require dilution prior to analysis.
(4)  The digestion and analysis shall achieve a reported detection limit
no greater than 0.001 percent (10 parts per million) for samples.
(5)  All necessary dilutions shall be made to ensure that measurements
are made within the calibrated range of the analytical instrument.
(g)  For testing glass and crystal used in children’s jewelry, the
following testing protocols for determining weight shall be used:
(1)  A component shall be free of any extraneous material, including
adhesive, before it is weighed.
(2)  The scale used to weigh a component shall be calibrated
immediately before the components are weighed using S-class weights of
one and two grams, as certified by the National Institute of Standards and
Technology (NIST) of the Department of Commerce.
(3)  The calibration of the scale shall be accurate to within 0.01 gram.
25214.4.2. The department may adopt regulations that modify the
testing protocols specified in Sections 25214.4 and 25214.4.1, as it deems
necessary to further the purposes of this article.

O
92