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Consumer Protection Laws for Hazardous Materials Gone Wrong

I find myself uncomfortably advocating repeal of a regulation and eliminating govt. enforcement of a number of consumer protection regulations -- here's how it's happened.
 
 
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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.

Certification, then, is a commercial venture for both the toxicologists and the art material manufacturers which leads, in my opinion, to the following abuses of the law.

* Misleading non-toxic labels are still provided. While LHAMA now requires warnings on known chronically hazardous products, the law is silent about ingredients whose hazards are unknown. Unfortunately, there are hundreds of complex organic chemical pigments used in art materials, including in children's art materials, which have never been studied for chronic toxicity. Without any existing data proving they are toxic, many toxicologist feel free to label them "nontoxic!"

As a result, the nontoxic label was, and is still, applied even to products containing untested pigments in chemical classes that are suspected to cause cancer on the basis of tests of other members of their class such as the aniline and anthraquinone pigments. These "nontoxic" pigments probably will cause cancer if tested. Even worse, the nontoxic label gives consumers the impression that the ingredients in the product were tested and found to be safe. Nothing could be further from the truth.

* Inadequate tests have been used to label products containing toxic or cancer-causing ingredients as safe. Toxicologists can satisfy their manufacturing clients desire for the nontoxic label on almost any product if they can devise a test to support their opinion that the user will not be significantly exposed during normal use of the product to the toxic ingredient.

One test (ASTM D 5517) places materials in contact with acid to determine if toxic metals would be released in the stomach. This test does not consider the complex sequence of interactions in the digestive tract of acid, water, bases, enzymes, cellular activity, heat, movement, and more. The test was proven faulty when it was used to label lead-containing ceramic glazes nontoxic. After years of lawsuits, poisonings, and two deaths from "nontoxic"glazes, the practice ceased. But this acid test is still used to evaluate other art products.

Another type of inadequate test is one that attempts to show that proper use of a toxic art material would keep users from being significantly exposed. For example, one toxicologist devised a test for exposure to pastel chalk dust in which air samples were taken while test subjects drew on paper laid out on a table. Yet artists commonly draw on easels, smooth colors with their fingers, and blow pastel dust off the paper which creates much higher dust exposures.

For another example, toxic substances embedded in wax as in encaustics sticks or crayons are often deemed safe. But if encaustics are fused by heating or using torches, or if crayons are melted to make into candles (a common project), the wax converts into toxic airborne emissions and toxic pigments can fume into the air. Prior to 2000, asbestos-contaminated industrial talcs were even used to harden the wax in children's crayons based on this theory.

Even worse, the toxicologists tests usually do not consider the artist's intimate exposure to their materials, crowded classrooms, tiny home studios, poor ventilation, lack of sinks, and other conditions common to home studios and schools. And they do not assess the greatest exposure of all which is from daily exposure to accumulated dusts and particles on floors, work surfaces, shelving, equipment, and smocks after products have been used in studios for months or years.

* Failing to consider other-than-directed uses. Artists and teachers traditionally use materials "creatively" and in ways not directed in product literature. Melting crayons into candles and burning them, ironing crayon colors into T shirts, and similar projects can cause even these "nontoxic" children's products to release toxic fumes. Adult products are even more toxic and artists throw paint at canvases, put them in guns and spray them, paint with their hands, and mix all manner of substances with their materials for experimental effects.

The creativity of the artist cannot be predicted or regulated. No toxicologist can imagine all the ways artists may devise to use their materials. The best label, then, is one that provides the identity of the ingredients so artists or their consultants can determine if projects will be risky.

LHAMA and Proposition 65. Proof that toxic substances were still in "nontoxic" art materials was provided when LHAMA regulations came into conflict with a California law called Proposition 65. While the art material law leaves the amounts of toxic substances in art materials that require labeling to the discretion of the toxicologist, California's Proposition 65 labeling law does not. This law correctly assumes, for example, that if lead or cadmium are in a product, even in small amounts, users and parents should know. Several art material companies were sued under Proposition 65 for failing to reveal the presence of lead in "nontoxic" products. Now such products must be labeled with Prop 65 warnings that begin: "This product contains a substance known to the State of California to cause……"

Proposed action: For all the reasons above, I think the law actually works against the interests of artists and parents. I propose the following remedies.

1. Repeal LHAMA. In addition to eliminating a bad law, repeal will immediately reduce operating expenses of art material manufacturers and startup costs for new art companies. Certification is costly. Repeal also eliminates the financial advantage that illegal non-certifying manufacturers currently have over those who comply with the law. The enforcement budget for the CPSC would also be reduced.

By repealing LHAMA, art materials would fall under an existing definition in the CPSC regulations which separates products into those for children and those for adults (see CPSC definitions at 16 CFR  1500.3(b)(15(i)(A) children's products, and (B) household products).

2. Only exempt adult art materials from lead, cadmium, and other toxic substance bans. Children's products should be free of toxic ingredients. Archival quality is not needed on ceramic pinch bowls or paintings taped to the refrigerator door.

3. Limit the use of the term "nontoxic" to products whose ingredients have been proven to be nontoxic in both acute and chronic tests. This is not going to happen anytime soon since there are hundreds of untested organic pigments. In the meantime, let consumers and parents know that they and their children are working with chemicals whose hazards are untested and unknown. Parents should be reminded that the colors in these products usually are not FDA batch-approved food dyes. And even if they were, would they really want their children exposed to these dyes in large quantities?

4. Provide label warnings to avoid exposure. All art materials containing untested ingredients should carry warnings to keeping art materials off the skin, out of the respiratory system, and away from the mouth. It's just plain common sense. And while they are at it, ban the advertising showing children with paints all over their faces and hands, holding soiled paint brush handles in their teeth, and other outrageous practices.

5. Expand the CPSC definition of chronically toxic to include all types of chronic toxicity. The advantage to LHAMA in the past was that there was no definition of chronically toxic in the CPSC regulations. Now there is (at  1500.3(c)(2)(ii)). Currently there are only three sections here: (A) carcinogens, (B) neurotoxicological toxicants, and (C) developmental or reproductive toxicants. As the law currently stands, long-term damage to the liver, kidneys or any other bodily organs are not covered and do not have to be labeled. In 1992, the CPSC promised to add toxic categories to this section. Let's hold them to it.

6. Eliminate private approval seals unless or until universal and enforceable standard is in place. You may have seen these AP, CP, CL, HL and other seals. They are confusing and should be eliminated in favor of simply telling people what's in the product.

7. Plan future laws using Proposition 65 as a model. Today, Proposition 65 provides a template for future legislation because it costs almost nothing for California to enforce and many good causes are supported by its unique enforcement mechanisms.

Enforcement is carried out through civil lawsuits against Proposition 65 violators who don't properly label products that contain any of the chemicals on the Proposition 65 list of toxic substances. The lawsuits may be brought by the California Attorney General, any district attorney, or certain city attorneys in cities with a population exceeding 750,000. Lawsuits may also be brought by private parties "acting in the public interest", but only after providing a lot of paperwork. For example, private enforcers must serve a certificate of merit which provides the qualifications of the experts who generated the reports, analyses or statements that support the violation. This is necessary to prevent frivolous enforcement actions.

All this paper work is worth it because the lawsuits can be very lucrative. A business found to be in violation of Proposition 65 is subject to civil penalties of up to $2,500 per day for each violation.

The chemicals that are regulated by Proposition 65 are in a long list developed and updated regularly by the California State Health Department. The list is made up of chemicals the Health Department has determined are capable of causing cancer, birth defects or developmental damage in children. Anyone can Google this list and see the chemicals for themselves.

Manufacturers, importers, and suppliers of products in the United States damn well better Google the Proposition 65 list and make sure that the mandated warnings are on products that contain them. Yes, I'm aware that this is a California state law, but it has almost the same effect as a federal law because California is a major market. Manufacturers who make their products available to Californians either comply with Prop 65 or they can be sued big-time in California!

Now let's see how it works. Suppose, you and I live in California and are running a small non-profit organization that needs funds. We could be for liberal or conservative causes, it doesn't matter. All we have to do is win lawsuits against violators of this law.

This is so easy to do. We could start by renting an x-ray fluorescent device (XRF analyzer), train some of our people to use it properly, and just aim the analyzer at products until we find some that flunk for lead, mercury, cadmium, chromium or any other substance we set the gun to quantify. So we would already be pretty sure of the results of the laboratory analysis in advance when we send the product out for the certified lab report we need to file suit.

Our next step is to provide the proper documentation for our legal Proposition 65 Notice of Violation and submit it to the Attorney General in our district. Now we wait sixty days. If the Attorney General's office decides we have a great case and wants to sue the violator themselves, we get a part of the award or settlement after they win. If the Attorney General doesn't file in 60 days, we get to call our staff lawyer and file ourselves. If we win, we get all of the money!

At the federal level, the US Consumer Product Safety Commission watches all these goings-on in California and may belatedly and grudgingly jump into the fray. For example, when lead-containing children's jewelry was being imported in vast amounts from China, the Consumer Product Safety Commission instituted a national recall of this hazardous stuff. Lost in the newspaper notices and articles about this recall was the fact that California activists were already suing some of these importers under Proposition 65 and had petitioned the Commission to take these actions.

It's important to remember, Proposition 65 doesn't ban chemicals. And it doesn't require citizens groups suing manufacturers to prove anyone ever got sick or was harmed by the product. Instead, Proposition 65's single issue is failure to properly label the product with warnings. And this violation carries a high penalty, high enough to have created well-qualified roving bands of lawyers and bounty-hunting activists whose income is enhanced by Proposition 65 settlements.

This law, despite some complaining from some manufacturers and importers, is fair.  They either make sure their products do not contain any of the chemicals on the Prop 65 list, or they must provide warning labels if they do. How hard is that?

The thing that makes Proposition 65 unique is its "citizen's enforcement clause." This clause enables anyone generating the proper paperwork to file suit against a manufacturer or importer. It also means the State of California doesn't need hundreds of inspectors purchasing and testing products. The activists and lawyers do it for them.

Think of any consumer safety law that you would dearly like to see enforced. How about the limits on lead and cadmium in children's products? Or the phthalate plasticizers in vinyl plastic toys? Or even limiting the word "nontoxic" to labels on those few products that have actually been tested and found safe?

Now imagine that these laws had citizen's enforcement clauses. Bingo!

So….. if the country really wants a small federal budget, here's one way to do it. Empower the people instead of the government.

 
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