Say What? A Chemical Can Damage Your Lungs, Liver and Kidneys and Still Be Labeled "Non-Toxic"?

Bisphenol A, parabens, phthalates, formaldehyde, and on and on. Do they expect us all to be chemists? I’m a chemist and even I don’t want make every trip to the store a research project. Why not just provide a simple label like “nontoxic” that we can look for? Surely it is illegal to put a nontoxic label on products containing known toxic or carcinogenic substances—especially on children’s products. Not so. And we all should know how we got into this mess.

Until the 1980s, even asbestos was a common ingredient in many products including children’s art materials. For example, one product was a powdered papier-mâché product for children marketed by Milton Bradley. It contained about 50 percent asbestos powder. Called FibroClay, the asbestos-containing product had a nontoxic approved product (AP) seal on it from the organization known today as the Arts and Creative Materials Institute (ACMI).

Although the hazards of asbestos were known in the 1970s and the 1980s, the only required toxicity tests for consumer products at the time were acute animal tests. These tests involve a brief exposure to the test substance and observation of the animals two weeks later. Because asbestos didn’t immediately poison the test animals, no law was broken by labeling this product “nontoxic.”

The asbestos problem and other labeling issues were raised by a group of activists, including myself, when I worked with a nonprofit corporation later known as the Center for Safety in the Arts. The center presented the problem to the National Art Materials Trade Association (NAMTA) in 1979. NAMTA refused to work with us to amend the labeling laws to cover chronic or long-term hazards, however, so we took the issue to various states. We were joined by many groups, including the American Academy of Pediatrics, the American Association of School Administrators, the American Public Health Association, and Artists Equity—a huge coalition of trade associations, health professionals, and artists. Yet the U.S. Public Interest Research Group and its many state offices became the backbone of the lobbying efforts.

Seven state legislatures understood the insanity of labeling products “nontoxic” when they contain known carcinogens and passed laws that required the chronic hazard labeling of art materials.

These states were California, Connecticut, Florida, Illinois, Oregon, Tennessee, and Virginia, and others considered similar legislation. Each state had slightly different requirements, which made it almost impossible for manufacturers to design a label that met all of the different rules. At this point, even NAMTA decided that it would be better to have a federal law to address this issue with a single set of regulations. Within a few years, a bill was drafted and introduced.

On October 19, 1988, Congress passed the Labeling of Hazardous Art Materials Act (LHAMA). Some of the provisions of LHAMA included requiring manufacturers to determine whether their products contained chronic hazards; requiring labeling on those products with chronic hazards, which included a statement that these products were inappropriate for children; prohibiting the purchase of such materials for use by children in grade six and below; and adopting the labeling procedures developed by the American Society of Testing and Materials for the labeling of chronic hazards in art materials, ASTM D 4236.

This sounds good so far, but there was a flaw in the ASTM D 4236 standard that none of us appreciated fully at the time. This standard requires a review of the list of ingredients by a toxicologist, who will then select the proper warning phrases and certify that this labeling will provide users with the information they need to use the product safely. If the toxicologist thinks there are no significant hazards, no warnings are required. His or her determination should be reached without any personal conflict of interest. But the flaw in this procedure is that the certifying toxicologist is paid for this work by the art material manufacturers—and handsomely.