Time To Get the Lead Out

One of the things we'll remember from 2007 is the many recalls of products imported from China. Almost every month, the public was hit with another health scare or product safety concern that resulted in recalls: pet food that contained melamine, toothpaste with diethylene glycol, and toys with lead-based paints.

None of this left the public with a good impression of China—something that the country wanted very much to avoid with the coming of the 2008 Olympics. It did not bespeak so well of American industry either. Congress and the regulatory agencies rightly wanted to know who was asleep at the wheel. Was this a case of suppliers pulling a fast one on their American customers, or customers turning a blind eye to the manufacturing shortcuts of its suppliers to ensure lower costs?

Whatever the case may be, this past year should wake up industry to the need to take a harder look at their product stewardship responsibilities. You may need to consider undertaking random audits and spot checks to ensure that your suppliers are providing you with a product that complies with stated specifications for purity. If there is reason to doubt a supplier's veracity, then an even more extensive compliance testing scheme may need to be considered, or even the business relationship itself examined.

Businesses in the U.S. must respond to the legitimate concerns expressed by the American public. As many companies are finding out the hard way, product recalls are expensive and damaging to a company's image.

In addition, companies of all types put themselves at risk of violating state laws that can cost them dearly. Two of them are Proposition 65 and the CONEG "Toxics in Packaging Laws."

Proposition 65

The Safe Drinking Water and Toxic Enforcement Act of 1986—better known as "Proposition 65"—requires the governor of California to publish a list of chemicals "known to the State to cause cancer or reproductive toxicity." At present, more than 700 chemicals are listed as carcinogens or reproductive toxicants.

One prohibition of the law states that no person may knowingly expose any individual to a significant amount of a listed chemical without first providing a "clear and reasonable warning."

This requirement typically gives product manufacturers fits. Violations of Prop. 65 are subject to hefty civil penalties—and even worse, private citizens are permitted to bring enforcement actions if the state declines to do so or does not act within 60 days after it is notified of an alleged violation. Because success in such a suit entitles these "bounty hunters" to 25% of any penalties assessed by the courts, Prop. 65 enforcement actions have become a lucrative business for many.

Thus, it is not unusual to find folks going through retail outlets in California doing swipe tests on products to determine whether, for example, such products may contain high levels of lead. Just as the paint used on a lot of those toys from China contain high lead levels, so can the inks used on packaging films and boxes. When the bounty hunter gets a "hit," it's time to purchase several product samples and do more formal testing. If the results confirm the original findings, the bounty hunter is well on his way to a nice payday.

CONEG

Another body of laws often overlooked, but that can have costly consequences, is the toxics-in-packaging legislation that has now been adopted by some 20 states. The law was originally developed by the Coalition of Northeastern Governors (hence the acronym, CONEG) as a model designed to reduce the levels of four heavy metals (lead, mercury, cadmium, and hexavalent chromium) entering the municipal solid waste stream. The state legislation adopted calls for a ban on the use of packaging that contains any of the specified heavy metals, if, during manufacture or distribution, the metals are intentionally added to the package itself or added to any packaging component, including inks, dyes, pigments, adhesives or stabilizers.

Most of the state legislation also restricts the incidental level of the combined heavy metals in the packaging to 100 parts per million. A variety of enforcement mechanisms are available depending upon the state involved, including injunctive relief and civil penalties, but no doubt the potential disruption to product distribution is likely the harshest penalty of all.

Proposition 65 has been on the books for 21 years and the CONEG laws have been around in some states for almost as long. So people ought to know about them, right? Of course, however, it is not unusual that in the day-to-day rush to meet market demands, things can get overlooked and products are placed in legal jeopardy solely by accident. These being strict liability statutes, good intentions are not sufficient to resolve the problem. Thus the need for invigorated product stewardship programs that may help avoid the problem at the outset.

Used with permission. Copyright FOOD & BEVERAGE PACKAGING, February 2008.