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 Colóns’ 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 Colóns 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.
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 un—warranted 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.
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.
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.
