From Newsweek, 2003:
He wears eyeglasses and takes Citrucel and mineral oil for his chronic constipation.
His smile is a patchwork of crowns, bridges and spacers. And though he gets
by in a mainstream public school, he lags academically and is still prone to
tantrums. “We’ll never know what he could have been,” says his
mother, 28-year-old Liz Colon, “or whether he could have been any different.”
Sammy was a healthy infant in 1996, when Liz and her husband scraped together
the down payment on a rambling Victorian house in the Smith Hill section of
Providence, R.I. The place needed work, and the $42,000 purchase price was a
stretch for the young working-class couple. But they took the leap, figuring
they could spend the rest of their lives restoring it. Four months later Sammy’s
pediatrician detected an unusual concentration of lead in his blood, and a follow-up
test yielded a reading of 56 micrograms per deciliter—more than five times
the official hazard level. As it turned out, the old paint in the Colons’
new home was silently showering the floors and windowsills with fine lead dust.
And like any kid his age, Sammy was traveling on all fours, touching things,
tasting things, sucking his tiny fingers. The aging paint was duly mentioned,
if easily overlooked, in one of the myriad papers the Colons signed at their
closing. So Liz blamed herself while Sammy suffered through months of illness
and noxious therapy. “I poisoned my own child,” she says.
GOING AFTER ‘BIG PAINT’
Childhood lead poisoning has declined steadily since the 1970s, when cars stopped
spewing leaded exhaust into the environment and lead paint was formally banned.
Yet 40 percent of the nation’s homes still contain lead paint from the
first half of the 20th century, and 25 percent still pose significant health
hazards. Chicago alone identifies more than 12,000 lead-poisoned kids each year,
New York City more than 7,000. By the time they’re 6 years old, more than
2 percent of the nation’s children—and up to 16 percent of poor minority
kids—absorb enough lead to harm their brains and bodies. Parents, landlords
and public agencies have traditionally shouldered the costs, but that may soon
change. Just as government lawyers went after the cigarette industry in the
1990s to recover tobacco-related health costs, they’re now suing the paint
industry.
And they’re taking a novel tack. Instead of suing the companies for past
injuries to tenants or property owners, the state of Rhode Island and other
plaintiffs are asking the courts to declare lead paint a “public nuisance”—and
force the companies to spend billions cleaning it up. “Public nuisance
doesn’t require that we prove negligence by the manufacturer,” says
Leonard Decof, an outside trial lawyer who is arguing the Rhode Island case—”simply
that the public has been forced to suffer an unwarranted hardship.” The
strategy has yet to pay off in Rhode Island, where a jury reached a deadlock
last fall and lawyers are now gearing up for a retrial. Newspaper editorialists
have dismissed similar suits as shakedown schemes. But whatever its merits,
the wave of litigation is shedding new light on an old problem, and raising
important questions about how best to handle it.
The problem is particularly daunting in Rhode Island, an urban state where old
homes outnumber new ones. As many as 330,000 Rhode Island housing units still
contain lead paint, and 9 percent of the state’s preschoolers have dangerous
levels of lead in their blood. The state isn’t seeking a specific sum from
the companies that sold the paint. Its first chore is to prove that the paint
is inherently hazardous. If a jury accepts that argument, any company that helped
create the nuisance will share the liability for cleaning it up. The suit names
eight companies, including American Cyanamid, Atlantic Richfield and Sherwin-Williams.
And it calls for an ambitious effort to minimize the hazard. If the state got
its way, the companies would pay to remove all lead paint from doors and window
frames, and to seal off other painted surfaces so they could never shed dust
into living spaces. Not every lead-laced home would need all that, but full
abatement would cost roughly $10,000 per household.
A WASTE OF MONEY?
The companies deny that old paint is always hazardous, and they insist that
widespread abatement would be a colossal waste of money. As long as residents
repaint regularly and guard against peeling or chipping, they say, the risk
that old paint will harm anyone is negligible. They note that even in Rhode
Island, where lead pervades the housing stock, the vast majority of lead poisonings
occur in a relative handful of poorly maintained properties. Ridding the world
of lead paint is one way to solve the problem, says Bonnie Campbell, a former
Iowa attorney general who now advises the industry—but there are easier
fixes, like going after landlords for housing-code violations. “This kind
of litigation sends the wrong message to an industry that has been very responsible,”
she says, “and it won’t help one child.”
Has the industry been responsible? While debating the nuisance question, the
contestants in the lead suits are also wrangling bitterly over the companies’
past behavior. No one now denies that lead is toxic and shouldn’t be used
in house paint. It fell out of favor in the early 1950s as cheaper and less
toxic alternatives took hold, and the federal government banned it in the ’70s.
The question is whether the manufacturers recognized the dangers, or should
have, while they were marketing it.
Australian doctors linked childhood lead poisoning to the paint on outdoor verandas
in 1904, just as the U.S. lead industry was beginning to mass-produce the stuff.
In 1914, physicians in Baltimore started reporting seizures, coma and death
among kids who chewed their lead-painted crib railings. Similar reports cropped
up regularly during the 1920s, and pediatricians started warning that the problem
might be far more pervasive than it appeared. By the companies’ account,
these early reports raised no legitimate concerns about interior house paint.
The early poisoning victims had all gnawed paint off furniture or toys, according
to Dr. Peter English, a Duke University physician who serves as a consultant
to the lead and tobacco industries. Lead companies promptly addressed those
known hazards, English argues in court papers and a book titled “Old Paint”
(he declined to be interviewed), but they had no reason to worry about doors,
walls or woodwork. Until 1949, he says, there was no indication that such interior
surfaces could pose hazards.
A BOON TO HEALTH?
Other experts insist there was ample cause for concern, and they accuse the
industry of cynically denying hazards that should have been obvious. “From
the 1920s on, the industry treated the lead-paint problem as a public-relations
issue,” says David Rosner, a Columbia University historian who has served
as a consultant for the plaintiffs. Instead of “actively warning parents
not to use lead around children,” he says, “the industry challenged
reports of lead poisoning and promoted lead paint as a boon to health.”
Rosner and historian Gerald Markowitz of New York’s John Jay College chronicle
the lead-paint saga in a new book titled “Deceit and Denial.” And
though their bias is clear, their facts punch some holes in the paint companies’
story.
No one accuses the lead manufacturers of hiding health information; industry
leaders learned about childhood lead poisoning through the same case reports
that doctors and health officials were reading in the 1920s and ’30s. But
as quoted by Rosner and Markowitz, those reports raised clear concerns about
woodwork and windowsills as well as toys and furniture. As early as 1915, Harvey
Wiley, the former Department of Agriculture official who created the Good Housekeeping
Seal of Approval, described lead paint’s “subtle” and “cumulative”
hazards and concluded that wallpaper or nonlead paint was “better for indoor
use.” By the early 1930s, many physicians were calling for the removal
of all lead from children’s environments. The Lead Industries Association
(LIA) responded by funding research projects at Harvard and Johns Hopkins. But
by Markowitz and Rosner’s account, the industry worked harder to dampen
health concerns than to air them. Even as European countries banned indoor lead
paint, LIA secretary Felix Wormser railed against “unfair ! and unfavorable
publicity” and maintained a policy of challenging “alleged cases of
lead poisoning” in order to “calm misapprehension about the toxic
properties of the metal.”
During the same decades, the industry touted lead paint’s virtues in promotions
aimed directly at kids and parents. In pictures, games and nursery rhymes, the
National Lead Company’s famous Dutch Boy character showed children how
lead paint could brighten their rooms and lives. In a 1929 “Paint Book
for Boys and Girls,” for example, the Dutch Boy arrives to find Old Man
Gloom looming over the kids in a drab playroom. ” ‘Oh Mother!’
each one cried with joy, ‘Please let us play with that nice boy!’
” Within a few pages, the room is clean and cheerful, the family is beaming
and Old Man Gloom is slinking away.
The companies insist that when viewed in historical context, none of this behavior
is as wicked as Markowitz and Rosner make it seem. Lead poisoning was still
a subjective diagnosis, they say, so the industry was right to question new
reports instead of taking them at face value. And many industries were reaching
out to kids in their advertising. But Heather Lee, for one, is not buying such
arguments. In 2000, she saw three of her five kids poisoned by lead in the dirt
behind her Providence rental unit. Housing inspectors tied the problem to paint
residues and promptly declared the house uninhabitable. Three years later Lee
is working as a volunteer for a local lead-awareness group and her family is
more or less back on its feet. Her 5-year-old still suffers from anemia and
mineral deficiencies, and her once focused 7-year-old has become a blur of motion.
“I don’t think my landlord neglected the property or concealed the
presence of lead,” she says, “but I think the paint companies knew
their product was harmful.” Lee won’t gain anything if Rhode Island’s
lawsuit succeeds. She just hopes it will spare someone else her experience.
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With Ken Shulman, Anne Underwood and Karen Springen
© 2003 Newsweek, Inc.