Consumer Protection Laws for Hazardous Materials Gone Wrong

The following has been adapted from an excerpt of Pick Your Poison by Monona Rossol, Wiley & Sons, released March, 2011.

As a safety expert, I'm usually firmly behind more and stronger regulations and big budgets for government agencies to enforce them. Now I find myself uncomfortably advocating repeal of a regulation and elimination of governmental enforcement of a number of consumer protection regulations. And here's how it's happened.

In 1970s and 1980s, I was one of many activists who fought for passage of the Labeling of Hazardous Art Materials Act (LHAMA). Art materials needed special attention because they were, and still are today, exempt from the consumer paint lead laws. They are exempted because artists need paint pigments that will not fade over time and, unfortunately, these pigments often contain lead, cadmium, mercury, chromium, and other toxic metals.

The problem we addressed thirty years ago was that many art materials containing substances known to cause cancer and other chronic illnesses could be legally labeled "nontoxic." The reason was that the labeling regulations enforced by the US Consumer Product Safety Commission (CPSC) only considered acute hazards, that is immediate health effects. The tests required to demonstrate safety were two-week-long animal tests. Unfortunately, substances like asbestos and silica don't cause cancer in animals (or people) in two weeks.

As a result, there were extremely hazardous art products on the market even for children. One such product was Milton Bradley's powdered papier mache mix called FibroClay. It contained about 50% chrysotile asbestos. The label had the Approved Product (AP) nontoxic seal from the Crayon, Water Color & Craft Materials Institute, now known as the Arts & Creative Materials Institute (ACMI). A package of FibroClay was one of many products that activists like myself used to graphically demonstrate the faulty labeling laws in public meetings and teach-ins all over the United States.

As a result, the Labeling of Hazards Art Materials Act (LHAMA) was passed in 1988 and in effect about 1990. We thought we'd done a great thing.

This law requires all art material manufacturers to provide a complete list of their ingredients to a toxicologist for evaluation. That sounds grand, but this ingredient list is compiled by the art material manufacturer who buys ingredients from various raw material manufactures and jobbers. Complete information about the ingredients may not be provided to the manufacturer. In addition, these art manufacturers usually are not chemists and can make mistakes about the identity of the chemicals. Under LHAMA, the toxicologist is under no obligation to determine if the list is accurate or even complete.

Next, based on this possibly faulty list, the toxicologist assesses risk. If, in the toxicologist's opinion, there are ingredients in the product that can present a chronic hazard to users, the toxicologist selects warning phrases for the label that, in the opinion of the toxicologist, will enable users to safely use the product. If the manufacturer labels the product as the toxicologist requires, the toxicologist allows the manufacturer to include a statement on the label that the product "conforms" to the law. All art materials sold legally in the US must carry a conformance statement.

Unfortunately, when we fought for this regulation, we didn't consider that the toxicologists are paid by the manufacturer for these opinions and the certification. They pay the toxicologist either directly or through organizations such as Arts and Creative Materials Institute. This is a gigantic built-in conflict of interest. The law provides no oversight or requirement that the toxicologist be independent of such conflicts of interest.