THOMAS F. REILLY
Spearheaded agreement
Starting next fall, bright orange warning labels on paint cans will alert contractors and do-it-yourselfers that sanding or scraping during remodeling could release hazardous lead dust.
Spearheaded by Massachusetts Attorney General Thomas F. Reilly, law enforcement officials in 45 states reached an agreement with the National Paint and Coatings Association, a trade group, to apply the warning labels. Among the more than 200 companies that will add the labels are Sherwin-Williams, Benjamin Moore & Co. and two Massachusetts-based companies, Cabot Stains and California Paints.
But public health advocates and elected officials criticized the accord as “too little too late.” They say labels won’t prevent lead poisoning and lets paint companies “off the hook” for a problem they created. Any solution to lead hazards, they say, must include reimbursement to taxpayers for the millions spent in abatement, special education and health care costs since the 1970s.
“A warning label is a nice idea but it doesn’t get to the heart of the issue,” said State Rep. Marie St. Fleur, a Dorchester Democrat who along with several colleagues has urged Reilly to sue paint companies to recoup the costs associated with lead poisoning.
Lead was used as a pigment in paint until the mid-1950s. Paint companies say they were unaware of the hazards of lead until 1955, when they voluntarily removed it. The federal government banned lead paint in 1978 after studies showed flaking paint or dust is harmful to children who ingest or breathe it.
Health advocates say paint companies knew or should have known since the early 1900s that lead was dangerous. They cite a 1904 article by Sherwin-Williams warning that lead is poisonous.
About 38 million homes, or 40 percent of the country’s housing stock, contain lead paint, according to the U.S. Department of Housing & Urban Development.
The Centers for Disease Control and Prevention estimates that 890,000 children aged 1-5 years have high blood-lead levels. In Massachusetts, 744 children had elevated blood-lead levels in fiscal year 2001, the most recent year for which data is available.
If untreated, lead poisoning can cause learning disabilities, behavioral problems, and at very high levels, seizures, coma and even death.
The major source of lead exposure is most often found in older homes in the form of lead dust, which may be kicked up when homeowners scrape or sand old paint.
A letter to Reilly last fall signed by representatives from more than 50 organizations including the Sierra Club said warning labels do not constitute a meaningful solution to lead hazards.
Donald Ryan, executive director of the Alliance to End Childhood Lead Poisoning, urged Reilly to include public health advocates in the negotiations with paint companies.
“Unfortunately, we were not invited,” Ryan said. “Attorneys general did not try to solve the tobacco problem on their own. They relied on researchers and scientists and public health practitioners.”
Sarah Nathan, Reilly’s spokeswoman, defended the action.
“We do our best to listen to public interest groups and take their concerns into account,” Nathan said. “But these are legal discussions and as a rule we do not open the door to groups to be part of the dialogue.”
Nathan said the discussions with paint companies culminated in a voluntary agreement that will protect families. Manufacturers have also promised an education component that will include training programs for consumers, contractors and housing authorities, she added.
Scratching the Surface
State Rep. Patricia D. Jehlen, a Somerville Democrat, questioned the value of a warning label.
“Most people don’t read the labels anyway,” Jehlen said. “By the time homeowners are ready to paint, the damage has been done because they’ve already prepared the surface by sanding or scraping.”
Stephanie Pollack, acting president of the Conservation Law Foundation, a Boston-based environmental advocacy organization, said her group supports the label agreement. But she said paint manufacturers must do more.
“A label is perfectly appropriate,” Pollack said. “But it should be seen as only the first step for broader action to make sure the industry that created the risk of lead poisoning is held accountable.”
St. Fleur, the Dorchester state representative, said she is troubled that the label could offer paint companies a defense against future litigation.
“I’m very concerned that by agreeing to a label, we’ve provided paint manufacturers with a cloak of credibility and make it more difficult to go after these companies in court.”
But Thomas Graves, general counsel for the National Paint and Coatings Association, said the label agreement does not preclude future legal action. He insisted that the label is only the latest effort by the industry to rid the nation of lead hazards.
“We don’t have a cloak of credibility, we have absolute credibility,” Graves said. “We voluntarily stopped using lead 50 years ago. We are a model industry and have had a history of good behavior.”
Christopher J. Sullivan, a product liability attorney at Boston-based Davis, White & Sullivan, said putting a warning label on a product wouldn’t protect manufacturers from litigation.
“Just putting a warning on a paint won’t guarantee success defending lawsuits,” said Sullivan. “But it does help companies in defending product liabilities claims.”
Rhode Island Attorney General Patrick C. Lynch, representing one of the few states that declined to participate in the negotiation over labels, called the agreement “an empty gesture.”
“These manufacturers didn’t need the approval of attorneys general to warn consumers about the dangers of lead-based paint,” Lynch said.
Last year in a landmark case, Rhode Island was the first state to allege that seven of the major paint manufacturers created a public nuisance and are responsible for poisoning 35,000 children since 1993. The state sought unspecified damages for the costs associated with abatement, health care and special education.
The paint companies argued that landlords should be held responsible for allowing the properties to deteriorate to the point where lead is exposed and children are injured.
Following a seven-week trial, Rhode Island Superior Court Judge Michael A. Silverstein declared a mistrial in the state’s lawsuit against the seven companies after the jury was deadlocked.
A new trial date will be set later this month.
