Annys Shin, The Washington Post, November 10, 2007

When a California public-interest group decided that regulators in Washington were ignoring hazardous lead in children's lunchboxes, it pursued the case on its own and forced several manufacturers to get the lead out of their products.

The latest of these was announced this week. Target, in a legal settlement with the group*, the Center for Environmental Health, agreed to phase out polyvinyl chloride, which can contain lead, not only in lunchboxes but in all of its products and packaging.

The Consumer Product Safety Commission, the government agency responsible for protecting the public from dangerous products, played no role. In fact, after its own testing, the agency declared the products safe and issued a news release saying unnamed critics "built a story around dangerous lunchboxes."

In the absence of government action, the environmental health group, along with a growing number of citizens and public officials, has sought to fill what it sees as a void left by federal regulators.

In recent months, for example, the Food and Drug Administration warned against young children using over-the-counter cough and cold medicine — only after Baltimore's health commissioner, Joshua M. Sharfstein, circulated a petition. New York's attorney general, Andrew M. Cuomo, uncovered scandals in the student loan industry, charging that "the U.S. Department of Education has been asleep at the switch." Lisa Lipin, a Skokie, Ill., woman whose son was strangled by a yo-yo waterball, got Illinois to ban the toy after the CPSC determined it posed a "low risk" of strangulation.

In its efforts to eliminate lead and other harmful chemicals from consumer products, the Center for Environmental Health has an advantage over most citizens and public-interest groups: a California law, known as Proposition 65, which allows lawsuits to enforce a requirement that products carry warning labels for chemicals that can cause cancer or birth defects.

Companies have incentives to settle: steep penalties — up to $2,500 per day per violation — and a potential public-relations debacles. "No one's going to advertise, 'New and improved, we've taken the lead out,' " said Lana Beckett, publisher of the San Francisco newsletter Prop. 65 Clearinghouse.

Since it opened its doors in 1996, the Center for Environmental Health has filed hundreds of notices to sue under Proposition 65. Notices are often enough to get companies to the negotiating table, and the center has forged agreements with the likes of Macy's, Wal-Mart, Hershey's, and Johnson & Johnson to get lead out of their products. While the settlements apply only in California, the size of that market usually leads to changes nationwide, said Charles Margulis, a spokesman for the agency.

The agency has used Proposition 65 to try to eliminate arsenic from wooden playground structures. Last month, it filed a notice to sue Apple over phthalates, a chemical used to soften rubber it claims to have found in the company's iPhone. But it is best known for its campaign against lead in children's products.

It began sending hundreds of products to labs for lead testing about five years ago. It chose lead in part because "the health impacts are unimpeachable," executive director and founder Michael Green said, referring to the consensus among public health experts that no amount is safe for children. Exposure to the toxic metal, even in tiny doses, has been linked to IQ deficits and behavioral problems.

As a matter of legal strategy, it was also a shrewd choice. While companies often contest the way the agency interprets lead testing data, none has challenged its findings in court or successfully refuted its claims that a product has the potential to expose children to lead.

"We're not a crunchy granola tree hugging group," said Green, a former Energy Department staffer. "We are entrepreneurial."

The group has earned the respect of some of its adversaries. "They do try to push the envelop in terms of the claims they bring, but once they bring the claims, they make a reasonable effort in finding resolutions that work," said Robert Falk, a San Francisco attorney who has negotiated with the group on behalf of businesses.

The group, however, has also been called a Proposition 65 "bounty hunter." Under the law, plaintiffs who prevail are entitled to fees. CEH has derived an average of 25 to 30 percent of its $1 million annual revenue from litigation, Margulis said. (The rest comes from individual donations and foundation grants.) The money is spent on product testing and making sure companies are complying with agreements.

The practice of publicly shaming companies constitutes "legal blackmail," said Frederick Locker, general counsel for the Toy Industry Association.

The group doesn't have to use the same testing standards that companies and regulators do, and it is free to stoke consumers' fears that they are at greater risk than they actually are, Locker said.

"We all want to reduce exposure to hazardous substances in consumer products," the lobbyist said. "Consumers expect uniform national standards for determining when there's in fact a real hazard and a risk to consumers and when that risk doesn't exist."

Margulies said the group uses the same independent labs as manufacturers and retailers do.

Its tactics can be harder on regulators, who can't escape a public flogging by signing a settlement.

"If some group tests for lead in a consumer product and creates hysteria and we test in a scientific way and don't find it, it puts us in a difficult position," acting CPSC chairman Nancy Nord said at a public meeting last month. "The group says we're not doing our job. They're right, we're wrong."

The vinyl lunchbox fight is a perfect example. The CPSC tested about 60 lunchboxes. Initially, it found high levels of lead. Then it changed its testing methods to best reflect how children might use lunchboxes and found "extremely low levels of lead."

"Children would have to rub their lunch box and then lick their hands more than 600 times every day, for about 15-30 days, in order for the lunch box to present a health hazard," the agency found.

Green and his group accused the CPSC of rigging its test for political reasons. It said the initials "HS" on an internal agency memo about the test results suggested that former CPSC chairman Hal Stratton had ordered the change. The letters, however, referred to the agency's directorate for health sciences, the CPSC said.

Green is unapologetic about his group's efforts.

"We can't do anything about lead in the environment except educate people about paint and gasoline," he said. "Where we can make a profound impact is on lead in the chain of commerce. That we can stop."

 

*CORRECTION: The Target victory resulted from a national coalition effort, of which CEH was a part, that was led by the Virginia-based Center for Health, Environment and Justice. The company's move to phase-out PVC was a direct result of this national campaign, and was not part of a legal agreement with CEH.

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