Historic litigation may shine light on toxic ingredients
Do household cleaners contain ingredients linked to asthma, nerve damage and other health effects? Manufacturers aren't telling, but Earthjustice attorney Keri Powell may have uncovered the key to their pursed lips.
While investigating a potential legal strategy, Keri found buried in the pages of a book of New York State statutes a long-forgotten law authorizing the Commissioner of the New York State Department of Environmental Conservation to require household cleaning product manufacturers to disclose their chemical ingredients and information about the health risks they pose. In other words, pay dirt.
State regulations issued in 1976 made these disclosures mandatory. Such laws are practically nonexistent in the United States, and the New York law has been altogether overlooked.
Earlier this month, Keri led a group of clients into the New York State Supreme Court for historic arguments over chemical disclosure, a case that could have national ramifications. Consumers and their advocates may finally get a satisfactory answer to that critical opening question, which has vexed them for years.
Some disclosures have already been made as a result of the case. After Keri discovered the law and realized companies had for decades been escaping a legal obligation, several household cleaner manufacturers doing business in New York State were put on notice. Letters we sent to the companies in Sept. 2008 requested that they begin obeying the law within 30 days or risk possible legal action. The letters prompted some companies, including the manufacturer of Simple Green products, to file disclosure reports for the first time.
Even though the law Keri unearthed is state-specific, the household cleaners it regulates are not. Simple Green products sold to consumers in the Empire State are no different from Simple Green products sold anywhere else in the country, so consumers across the United States benefit equally from these disclosures and any further information gained as a result of our litigation.
In Mar. 2009, SC Johnson announced that it too would disclose chemical ingredients rather than face Earthjustice attorneys in court. Concurrently, the company launched a candid website that "offers a detailed look at the ingredients in [SC Johnson's] products so you can make the right decisions for your home."
But four companies—Procter & Gamble, Colgate-Palmolive, Church and Dwight, and Reckitt-Benckiser—stonewalled, and thus found themselves a few weeks ago across from Keri and her colleagues in a Manhattan courtroom as defendants in this first-of-its-kind lawsuit. They made it clear that their lips are sealed until authorities pry them open. As Health Campaigner Kathleen Sutcliffe wryly remarked last week, Mr. Clean went to court and pled the fifth.
While this unprecedented legal work unfolds, efforts are being staged on other fronts to change the way toxic chemicals are treated in the United States. A few months ago, I wrote about the urgent need to reform the Toxic Substances Control Act, the major U.S. law concerned with keeping the public safe from toxic chemicals in commercial products. We are awaiting introduction of new federal legislation to fix the current broken system. The household cleaners case helps push the national reform effort forward by showing that disclosure of ingredients and health effects is good for consumers and good for business.
But our New York case also demonstrates that much can be done while we wait for federal reform. After all, figuring out what's in a household cleaner shouldn't be as hard as finding a decades-old, neglected statute in a book of New York laws. Our hope is that all a consumer will have to do in the future to uncover the ingredients in their spray bottle is look at the label.