Michigan AG's office reviewing lawsuit to hold companies liable for putting lead in products | Michigan Radio

Michigan AG's office reviewing lawsuit to hold companies liable for putting lead in products

Jun 21, 2019

The tobacco industry paid.

The asbestos industry paid.

The pharmaceutical industry is being forced to pay, with more on the way.

And the industry that made products with toxic lead could be next.

The Michigan Attorney General’s office is reviewing a possible legal case against companies that made lead-based products. Last year, the U.S. Supreme Court declined to overturn a California decision that said paint companies must pay $409 million to cover the damages caused by lead-based paint in that state.

“I think what the California case brought to light is a potential turning of the tide,” said Dr. Mona Hanna-Attisha, a pediatrician at Hurley Children’s Hospital who also serves on the Michigan Child Lead Exposure Elimination Commission. “The lead industry has harmed generations of Michiganders, and they have not paid for those crimes.”

"The lead industry has harmed generations of Michiganders," said pediatrician Mona Hanna-Attisha. "And they have not paid for those crimes."

Dr. Hanna-Attisha and other members of the Michigan Child Lead Exposure Elimination Commission asked Michigan Attorney General Dana Nessel to look into filing a lawsuit similar to the one in California. That request was delivered earlier this month, in the form of a letter signed by Michigan Department of Health and Human Services Director Robert Gordon.

“We have received Director Gordon’s letter and it is being reviewed by our Corporate Oversight Division,” said Kelly Rossman-McKinney, a spokesperson for the Attorney General’s office.

An 18-year legal fight

If Michigan pursues a lawsuit, it could be a massive undertaking. Lead is a potent neurotoxin that continues to poison children nationwide. But holding companies accountable for lead in their products has proven difficult. Much of the manufacturing of lead-based products stopped decades ago, and proving the exact source of individual cases of lead poisoning is difficult.

But the decision from the California lawsuit has caught the interest of many states. If Michigan files a lawsuit, it likely won't be the only state to do so.

"... lead is a deadly cumulative poison," wrote the Sherwin-Williams Company publication The Chamelion in 1900, 77 years before lead-based paint was finally banned in the U.S.

The California lawsuit took 18 years to be fully resolved. Filed on behalf of 10 municipalities and counties in the state, the lawsuit claimed that Sherwin-Williams Company, ConAgra Grocery Products and NL Industries created a general “public nuisance” by continuing to make and promote lead-based paint, long after the companies knew that lead could cause serious health problems for children.  

“SWC [Sherwin-Williams Company] began manufacturing paints containing white lead carbonate pigments in 1880,” wrote the California Court of Appeals, in a decision handed down in 2017. “SWC’s internal publication, The Chameleon, published an article in 1900 that acknowledged the many dangers of lead paint. It stated: “A familiar characteristic of white lead is its tendency to crumble from the surface, popularly known as chalking.” And: “It is also familiarly known that white lead is a deadly cumulative poison.”

Despite this knowledge, paint companies continued to promote lead-based paint for indoor use, including in hospitals, schools and homes.

The companies even targeted children in their advertising.

"A new game"

One page from a Dutch Boy paint book, released in 1929.
Credit image from taken from "The Politics of Lead Toxicology and the Devastating Consequences for Children" published in the American Journal of Industrial Medicince, 2007

NL Industries, which created the Dutch Boy brand of paints, created a “paint book” for children in 1929.

“The book showed children stirring and painting with clearly labeled containers of Dutch Boy White Lead paint and then playing in their newly painted playroom,” said an article published in the American Journal of Public Health in 2000.    

The article, titled "'Cater to the Children': The Role of The Lead Industry in a Public Health Tragedy, 1900-1955," also documented how companies created the Lead Industries Association to combat the growing evidence of the harms of lead. The LIA created a promotional campaign in 1938, and sent representatives traveling across the country to sell people on the idea of using lead paint for all their painting projects.

One representative, Seldon Brown, wrote about his efforts to get lead paint in Flint schools.

“In Flint, Mich., the superintendent of maintenance for the Board of Education was “very interested in our description of the qualities of interior white lead,” wrote Brown, according to the AJPH article. “[He] said that he thought that white lead was going out because he has heard so little about it. [He knew] nothing about white lead for interiors. [But he] plans to run comparative tests between white lead and present mixed paint used on interiors.”

"Severe" impact

In 2017, nearly 5,000 children under the age of six in Michigan had elevated levels of lead in their blood, according to state figures. Public health experts say lead-based paint remains the primary source of exposure to lead for the state’s children.

Elevated levels of lead in children’s blood has been linked to learning disorders, lower IQ, behavior problems and other health issues. Experts say no amount of lead exposure is safe for children.

In the California lawsuit, the paint companies claimed that selling lead-based paint was legal at the time. And they argued executives didn’t have “actual knowledge” that lead paint dust could harm kids in small quantities. Courts ultimately rejected that defense.

"The recent avalanche of public nuisance claims under the new California doctrine will bury American business in even greater litigation costs and burdens," said the U.S. Chamber of Commerce.

The U.S. Chamber of Commerce has said the California ruling sets a precedent that could affect not just paint companies, but any company that creates products that could someday be deemed a “public nuisance.”

“[T]he impact on commerce will be severe,” the Chamber wrote in a brief to the U.S. Supreme Court, asking that court to overturn the California decision. “The recent avalanche of public nuisance claims under the new California doctrine will bury American business in even greater litigation costs and burdens. Even if defendants manage to prevail, the cost of having to defend these massive suits is substantial and will add to the eight figure amounts most large American businesses must already spend each year just in litigation expenses.”

The U.S. Supreme Court declined to review the case.

More than paint

The Michigan Child Lead Exposure Elimination Commission was created in 2017 to coordinate the state’s efforts to stop lead poisonings in the state. Members say, if Michigan pursues a lawsuit against lead manufacturers and wins, the money still won’t be enough to cover the full cost of solving the state’s lead problem. But they say it will help.

“I think that it’s really incumbent on the attorney general to step up on something like this,” said commission member Paul Haan, who also leads the Healthy Homes Coalition of West Michigan. “I mean, we’ve stepped up on tragedies like Flint. That’s one city. This is something that’s statewide. The contribution of lead in paint is almost monolithic when it comes to childhood lead poisoning. And to ignore that and not step up on that I think is a huge oversight.”

And the request to look into a lawsuit could expand beyond just the companies that manufactured lead paint.

“Such a lawsuit could potentially seek to address the continuing harms to public health caused by the manufacturers of both lead paint and lead service lines used to deliver drinking water,” says the letter sent to the attorney general’s office.

Dr. Mona Hanna-Attisha said she’d also like the attorney general to look into the harms of leaded gasoline. Fuel containing lead was banned for automobile use in the U.S. in the 1990s, but pollution from it remains in soil, Hanna-Attisha said.

The use of tetraethyl lead in gasoline was pioneered by General Motors in the 1930s. The company held a patent on it for decades.

Hanna-Attisha, a pediatrician who played a key role in uncovering the extent of the lead problem in Flint’s water supply in 2015, said she doesn’t know what the legal options are for holding companies accountable for the many lead-based products that were created over the past century.

But she said she and other members of the Child Lead Exposure Elimination Commission want to the attorney general to find out.