Briefing Report: Getting the Lead Out

Wednesday, April 9, 2008

Introduction

In August 2007, Mattel Incorporated, the nation’s largest toy manufacturer, recalled approximately 1.5 million children’s toys worldwide due to concerns regarding high levels of lead paint. Like many U.S. companies, Mattel contracts with manufacturing firms in China to produce its products. A sub-contractor in charge of painting the toys used paint from a supplier Mattel had not authorized.

Since the recall, Mattel and the industry have been proactive in addressing safety issues and taking necessary actions to reduce lead content in their products. The company has worked with suppliers to establish new standards. Retailers, such as Wal-Mart and Toys “R” Us, also have imposed new lead content limits on toy manufacturers.

In addition, the federal government has begun the process of reforming consumer product safety laws with respect to lead content of toys. In March 2008, legislation was sent to a conference committee to negotiate comprehensive changes.

Alas, California legislators can’t help but inject themselves into the fray. A number of bills are pending before the Legislature to protect children from products containing lead. The real effect of these measures, were they to pass, would be to place unreasonable lead content limits into California law, establish more stringent standards than current industry or proposed federal standards and make it more difficult and more costly for toy sellers to obtain compliant products.

Background

According to the California Department of Public Health, lead poisoning can cause lifelong learning and behavior problems. Therefore, it is imperative that children be protected from the dangers associated with lead. Lead and lead poisoning affect children in the following ways:

  • Lead poisoning can harm a child’s nervous system and brain when they are still forming;
  • Lead can lead to a low red blood cell count (anemia);
  • Small amounts of lead in the body can make it hard for children to learn, pay attention, and succeed in school; and
  • Higher amounts of lead exposure can damage the nervous system, kidneys, and other major organs.

Under federal regulations established by the U.S. Consumer Product Safety Commission (CPSC) in 1977, surface coatings may contain lead content up to 600 parts per million.

The CPSC, created under the Consumer Product Safety Act in 1972, was directed to protect the public “against unreasonable risks of injuries associated with consumer products.” The Commission has jurisdiction over approximately 15,000 kinds of consumer products used in and around the home, in sports, and schools. Its main role is to save lives and keep families safe by reducing the risk of injuries and deaths associated with consumer products. This is accomplished by:

  • Developing voluntary standards with industry;
  • Issuing and enforcing mandatory standards or banning consumer products if no feasible standard adequately protects the public;
  • Obtaining the recall of products or arranging for their repair;
  • Conducting research on potential product hazards; and
  • Informing and educating consumers through the media, state and local governments, and private organizations and by responding to consumer inquiries.

Timeline of the Recall/Mattel Response:

On August 2, 2007, days after becoming aware of potential problems regarding the lead content in certain products, Mattel voluntarily recalled 1.5 million toys produced by its Fisher-Price subsidiary. Approximately 967,000 were recalled in the U.S. The company worked closely with the CPSC to alert consumers. The swiftness of Mattel’s action led CPSC’s public affairs director to comment, “In a case such as this one – where lead paint was the hazard – from the time that the agency is notified to the time the consumer was notified of the damages was within days. This is a recall that happened very quickly.”

Mattel immediately imposed stricter testing requirements on its imported products. Chief Executive Officer Robert Eckert said, “This is no guarantee that we will not be here again and have more recalls. We are testing at a very high level.” In fact, Mattel was “here again.” Two weeks later, another 9 million toys were recalled.

Further Industry Response

Along with the new testing requirements established by Mattel, the retail industry took further action to improve product safety in February 2008. Wal-Mart Stores, Inc. and Toys “R” Us, Inc., the top two toy sellers in the United States, announced they were reducing the amount of permissible lead in toy products shipped to their stores. Chairman and CEO of Toys “R” Us Gerald Storch remarked, “We made a commitment to the world that we would push forward toy safety as a top priority.”

The two retailers stated that they would only accept products that contained 90 parts per million or less. This standard is more stringent than new proposed federal standards for lead content.

Federal Legislation

House Resolution 4040 and Senate Resolution 2663 are two versions of the Consumer Product Safety Commission Reform Act currently pending in conference committee. These measures passed the House of Representatives by a vote of 407-0 in December 2007 and U.S. Senate by a vote of 79-13 in March 2008, respectively. The provisions being debated by the conference committee include:

  • Lowering the permissible lead content standard from 600 parts per million to 100 parts per million; and
  • Requiring testing on consumer products by an independent third party.

Pending California Legislation

Even with industry actions and the pending federal legislation, California legislators are pursuing measures to address this issue. Predictably, these bills go way beyond the other reform measures. The bills of particular note are:

AB 2694 (Ma) – Prohibit the manufacturing, selling, exchanging, or possession with intent to sell of any children’s product (i.e. toy) that contains more than 40 parts per million of lead.

AB 2957 (Swanson) – Requires the Department of Public Health to post on its website the name and description of any toy that is coated with paints that contain lead in any amount.

SB 1713 (Migden) – Prohibits the manufacture, sale, or distribution of any toy intended for use by a child 3 years or younger that contains detectable levels of lead.

Conclusion

The lead content standard proposed in AB 2694 has not been considered by any other entity in this debate. AB 2957 institutes a reporting requirement that would encompass every toy sold in the state. SB 1713 implements a prohibition for any product containing “detectable” levels of lead. To date, no research or data have been presented demonstrating that these thresholds provide substantially better protection against lead poisoning of children than those established by industry or proposed under federal law. These state bills implement overly restrictive, California-only requirements on consumers and the business community without any documented proof that these requirements improve toy safety.

As the bills inevitably move through the legislative process, it is imperative that Senate Republicans highlight the actions being taken voluntarily by toy manufacturers and major toy retailers and the pending reforms at the federal level. The key question that should be asked is what data demonstrates the need for the lower thresholds and unique reporting requirements proposed in the legislation to enhance the protections currently being provided by toy makers, retailers, and the federal government. If that question cannot be answered then the legislation is just another example of California taking a good idea one step too far and inflicting unnecessary damage on consumers and businesses alike.

 

For more information on this report or other Environmental Quality issues, contact Dane Wadle, Senate Republican Office of Policy at 916/651-1501.