Lead for Tots
It's been a year now since federal agents went into the Salinas Valley in search of killer spinach - contaminated with e coli from agricultural waste. Now e coli has been found contaminating ground beef used in elementary school cafeterias and, before that, intended for Burger King Whoppers. Three times as many Americans will die this year from contaminated food than have been lost so far in Iraq.
Enough with the supermarket, let's go to the toy store. Contaminated by lead, millions of toys have been recalled by the Consumer Products Safety Commission ("CPSC"), from Barbie "accessories" to Sponge Bob Square Pants to Thomas trains. More are likely in the pipeline on the way to a Toys "R" Us or Wal-Mart near you.
What's going on here? Next, it will be poisoned tuna fish in junior's lunchbox. Oh, right.
These events are not aberrations. They are the consequences of a failing and outdated regulatory regime - inadequate to safeguard even domestic production and now overwhelmed by the global economy. Food and consumer products manufactured in U.S. fields (yes, food is now manufactured) and factories at least are subject to U.S. quality control and (infrequent) inspections. Not so for the fields and factories of China, India and elsewhere; inspections at the border are little more than a fantasy.
Our regulatory "safety net" is broken. It was sewn together and then patched over several decades by the likes of Upton Sinclair, Ralph Nader and Congressman Henry Waxman - tacked together with overlapping laws and conflicting standards - the Food and Drug Act, Consumer Product Safety Act, Poison Prevention Act, Refrigeration Safety Act and many others. Whether its food for humans, toys for Billy or kibble for Fido, this net has holes including:
- a lack of scientific toxicity data on "what's it do," for pesticides, mercury, lead, e coli and dozens of other toxins and pathogens;
- an enormous lack of residue chemistry data for "what's there," especially for imported goods; and when contamination is found, the cow is always already out of the barn, the hamburger already on the barbeque;
- a system in lack of regulatory power to adequately punish offenders, initiate effective recalls or stop distribution;
- an absence of centralized decision-making, no single health based standards, far too much "process," and a dearth of money.
If government doesn't protect us from poisoned food and dangerous products, then why have government at all?
While China is catching most of the heat, the global economy has simply made matters worse. When children's toys present a possible health hazard, agencies like the CPSC placate, rather than protect, announcing one "recall" after another, each more a sham than the last. (How many parents know precisely when they bought a toy with what lot numbers?) Agencies routinely leave products on the shelves - and in people's home - for weeks after a problem is found. Last summer, some one million pounds of shrimp, catfish and eel from China went straight through an FDA "import alert" to America's supermarkets. Last week, USDA waited eighteen days before recalling ground beef found to contain e coli O157:H7. Eventually, 21.7 million pounds was recalled - the second largest in U.S. history - enough for 80 million "Quarterpounders" - if laid ended to end, to reach . . . well a very long way.
What's been the Congressional response? Tepid. After "la affaire spinache," Senator Dick Durbin (D Ill) and Rep. Rosa DeLauro introduced legislation consolidating all food safety issues in one agency with a "food czar." The bill remains in committee. "Lead for tots" has sparked cries of outrage. CPSC Chief Nancy Nord is on television more than Hillary Clinton. Congressional committees drag bureaucrats in for "oversight." But - if you'll pardon the expression - "where's the beef?"
What's a concerned consumer to do? Boycott toys? Stop eating tuna? Give up beef? Pass the spinach? No. None of that would work. The source of exposure to toxic contamination -air, water, food or consumer products - is irrelevant. E coli is not only in spinach, it's in drinking water. Lead (its elimination from gasoline a success story) is ubiquitous, in the air, food, home and workplace.
And there is no stopping globalization and millions of products pouring in from countries with even greater problems. Consumer groups are calling for more inspections at the border and changes in trade agreements because - should our hog-tied Congress ever actually legislate - new laws are open to challenge as "non-tariff trade barriers". All of these reforms are necessary.
But so is self-defense. After the Bhopal disaster, Clean Air Act amendments created the Toxic Release Inventory (TRI), establishing a "right to know". Major polluters were required to test their emissions and disclose amounts to those exposed. From the glare of this sunlight, dramatic reductions occurred.
This same approach should now be used for consumer products. Companies like Toys "R" Us, Mattel and Wal-Mart have made profits in the billions. They will again this holiday season (although perhaps a tad less). They should be required to extensively test their products for dangerous chemicals - and disclose the results to their customers. So should other manufacturers of consumer products. The power of information - and the market - will do the rest.
Congress knows how to write such a law. They have done it with TRI. Time to do it again, by amending a now nearly useless, thirty year old Toxic Substances Control Act.
Or we can stay the course, relying on neutered bureaucrats and corporate inaction. We do so at our peril though and should keep in mind the recently expressed views of Mattel Chairman Robert Eckert "The company discloses problems on its own timetable because it believes both the law and the [CPSC] enforcement practices are unreasonable" the Mattel head said. It should evaluate hazards internally before alerting any outsiders, "regardless of what the law says." Oh really . . .
An environmental lawyer, Al Meyerhoff is past director of the Natural Resources Defense Council's Public Health Program.
Read More Firm News
- Robbins Geller Partners Aelish Baig and Jessica Shinnefield Recognized as “Born Leaders” and Plaintiffs’ Lawyers Trailblazers by The National Law JournalMay 4, 2021
- Robbins Geller Secures Appellate Win After Supreme Court of New York Appellate Division Affirms Denial of Motion to Dismiss in Securities Class Action Against Alnylam Pharmaceuticals, Inc.April 30, 2021
- April 29, 2021
- April 22, 2021
- April 21, 2021