| Fairness requires holding
the lead industry accountable for the costs of cleaning up the
problem it created. Although the lead pigment manufacturers
were aware of the dangers of lead-based paint, they aggressively
promoted it as safe for use in homes, schools, hospitals, and
nurseries, claiming that lead-based paint promoted health and
sanitation. Indeed, the industry internally acknowledged the
hazards of lead-based paint early in the 1900s, but concealed
them from the public. For example, Sherwin-Williams published
an article in 1904 warning that lead-based paint was poisonous
both for workers and inhabitants of homes, and then began manufacturing
and selling lead-based paint in 1910 after purchasing an interest
in a lead mine.
Faced with mounting evidence during the first half of the
20th century of the hazards of lead-based paint, lead industry
leaders attempted to rebut adverse research findings and continued
to aggressively market lead-based paint. In addition, the
lead industry lobbied heavily to thwart governmental efforts
to regulate lead-based paint and require warnings. Similar
to the tobacco companies, the lead industry targeted children
through its advertising, producing and distributing Dutch
Boy painting booklets and souvenirs, and urging paint store
owners not to “forget the children.”
Industry attempted to blame parents for failing to protect
their children adequately from lead hazards through the 1950s.
In 1957, the Lead Industries Association’s health and
safety director attributed the problem of lead poisoning to
flaking paint in slums, concluding that the problem could
only be addressed by ridding the country of slums and educating
“relatively ineducable” parents. As late as 1959,
lead poisoning was seen as “a headache” by the
industry.
The industry’s responses to the lawsuits have included
denying and deflecting responsibility for causing lead poisoning:
The industry is fond of claiming that it stopped adding lead
to interior paints when it learned that lead-based paint was
dangerous. In fact, the lead pigment manufacturers knew that
lead-based paint was hazardous long before 1955. The decision
to push for adoption of a 1955 standard limiting the lead
content in paint was a ploy to further delay government regulation.
The self-serving standard allowed 10,000 parts per million
of lead in paint, exempted exterior paints altogether, was
completely voluntary, and lacked any means for tracking or
enforcement.
Moreover, it was largely a concession to market forces. By
1954, with lead-based paints losing market share to safer,
better alternatives and with the expanding demand for lead
in automobile fuel, it was a clever exit strategy for the
lead industry to magnanimously participate in the adoption
of this unenforceable standard.
The 1955 standard notwithstanding, these companies continued
selling paint with lead in it, at reduced but still harmful
levels. They did not stop until the government forced them
to by banning lead paint in 1978. And from 1978 to today,
they have done virtually nothing to prevent children’s
exposure to toxic lead dust from paint, or to remove lead-based
paint hazards from children’s homes.
The fact that the federal government banned lead-based paint
in 1978 has not prevented the product from continuing to cause
serious damage to children’s intelligence and behavior.
Lead-based paint takes its toll every day as more children
are poisoned, and it will continue to do so unless and until
lead hazards are abated. Lead-based paint may no longer be
on the shelves, but lead paint hazards in most older housing
continue to poison generation after generation of young children.
Home ownership carries with it responsibilities as well as
rights, including the duty to maintain property in safe and
habitable condition. Rental property owners properly are held
accountable when they endanger children by failing to control
lead hazards. However, property owners are not to blame for
the fact that the paint in their homes is toxic. The lead
industry, which for decades aggressively marketed lead-based
paint as safe, bears sole responsibility for the toxic qualities
of paint.
In fact, research published by the CDC (Morbidity and
Mortality Weekly Report, April 6, 2001) confirms that
even the most responsible property owners cannot rid themselves
of this nuisance. It points out that after lead-painted wood
has been chemically stripped with a caustic (alkaline) material,
the bare wood may still contain lead that can be released
if the surface is disturbed, for example by sanding. This
study documents that that even property owners who justifiably
may think they have removed lead paint could still have potential
hazards.
To date, the lead industry has refused to contribute significant resources
to solving the problem it created. Instead, the industry has invested
enormous sums in lobbying to dissuade cities and states from filing—$1
million in Milwaukee alone prior to that city’s decision to sue.
The industry has hired prominent Washington lobbying firms including Cassidy
& Associates and Hill & Knowlton, as well as former US Attorney
General Dick Thornburgh, former Maine Attorney General Andrew Ketterer,
and former Members of Congress Alan Wheat and Martin Russo. Industry’s
favorite counter-proposal is to suggest spending more of other people’s
money. In Milwaukee, for example, the industry offered to use its lobbying
clout to shift additional federal dollars to Milwaukee (at the expense
of other cities receiving lead hazard control funds).
The recent suits are directed primarily at companies involved in the
manufacture, distribution, or sale of lead pigments, the lead component
in lead-based paint. Well-known paint companies, including Sherwin-Williams,
have been sued. Some companies that produced lead pigments have been sold
or have merged, so their successor companies inherited these legal responsibilities.
American Cyanamid, Atlantic Richfield, O’Brien Corporation, SCM
Chemicals, Cytec Industries, Millennium Inorganic Chemicals, Valspar Corporation,
and ConAgra Grocery Products Company all have been sued as successors
to lead pigment producers. Additional defendants include companies prominent
in the lead industry, such as E.I. Du Pont de Nemours and NL Industries
(formerly National Lead, producer of Dutch Boy lead-based paint). Some
jurisdictions also have sued local manufacturers and sellers of lead-based
paint. The Lead Industries Association (LIA), the industry’s trade
group, also is named as a defendant in the lawsuits for its role in downplaying
the dangers of lead poisoning and promoting the use of lead-based paint
in residences, schools, and hospitals, despite clear knowledge of the
hazards. In April 2002, the LIA, a defendant in nearly 40 cases against
former manufacturers of lead-based paint, filed for bankruptcy under Chapter
7 of the Bankruptcy Code (liquidation). As a result, lawsuits in which
the LIA is a defendant are stayed with respect to the LIA, but continue
against other defendants.
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