Taking Lead Safety Into Its Own Hands

Group Uses California Law to Pressure Companies

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."