California Attorney Tom Martin’s Law Blog

Mattel Inc. announced its third major recall of Chinese-made toys in little more than a month, including Barbie doll accessories, GeoTrax locomotive line and Bongo Band toys because of excessive amounts of lead-tainted paint.

A complete list of recalled toys is available here.

675,000 recalled Barbie accessories include the Barbie Dream Puppy House, which had lead paint on the dog; the Barbie Dream Kitty Condo playset, which had lead paint on the cat; and the Barbie table and chairs kitchen playset, which had lead paint on the dog and dinner plates. The recalled Barbie accessories were sold between October 2006 and August of this year. No Barbie dolls were included in the action.

The recall covers 90,000 units of Mattel’s GeoTrax locomotive line and 8,900 Big Big World 6-in-1 Bongo Band toys, both from the company’s Fisher-Price brand. The Big Big World products were sold nationwide from July through August of this year, while the GeoTrax toys were sold from September 2006 through August of this year. (Source: AP.)

Lead can cause brain damage when ingested by young children. Under current regulations, children’s products found to have more than .06 percent lead are subject to a recall. For more information on health hazards associated with lead exposure from toys, click here.

“The only thing more frightening than these tainted toys from China falling into the hands of children is how powerless the very agency in charge of consumer protection is to stop it,” said Sen. Charles E. Schumer (D-N.Y.). (Source: Washington Post.)

If you purchased any of the recalled toys, you may have a legal claim. For further information, feel free to contact the Law Office of Thomas Glenn Martin by clicking here.

Another Mattel recall targets two categories of toys:

(1) 436,000 Chinese-made die-cast toy cars depicting the character Sarge from the animated film “Cars” because they are covered with lead paint; and

(2) 18.2 million other Chinese-made toys because their small, powerful magnets could harm children if swallowed.

About half of the toys in each recall were distributed in the United States.

In a New York Times Article, Robert A. Eckert, Mattel’s chairman and chief executive, was quoted as having said in a conference call: “No system is perfect… There’s no guarantee that we will not be here again.”

The lead-paint recall was Mattel’s second in less than a month of lead-tainted toys made in China. Together, the recalls have thrust the maker of Barbie dolls and Hot Wheels cars into the heart of rising concern over products made in low-cost factories in China. Last month’s recall of toys with lead paint included some based on characters from “Sesame Street” and “Dora the Explorer.”

The magnetic toys involved in the new recall included 63 products that, though produced in China, were recalled because of a design flaw on Mattel’s part, not a problem with its Chinese contractors.The magnetic toys had been produced since 2002 and sold before January 2007. They include 44 different Polly Pocket toys, 11 Doggie Day Care toys, 4 Batman toys, a One Piece toy, and 2 Barbie toys. (Source: NY Times.)

If you purchased any of the recalled toys, you may have a legal claim. For further information, feel free to contact the Law Office of Thomas Glenn Martin by clicking here.

Toy giant Fisher-Price announced a worldwide recall of about a million toys — including the popular Big Bird, Elmo, Dora and Diego characters — because they may contain excessive amounts of lead in their paint.

The company says the recall includes 83 types of its plastic preschool toys sold in the United States between May and August. A complete list of tainted toys can be found here.

In an interview with The Associated Press, David Allmark, general manager of Fisher-Price, said the problem was detected by an internal probe and reported to the Consumer Product Safety Commission. The recall is particularly alarming since Mattel, known for its strict quality controls, is considered a role model in the toy industry.

Fisher-Price and the commission issued statements saying parents should keep suspect toys away from children and contact the company. Allmark said the recall was troubling because Fisher-Price has had a long-standing relationship with the Chinese vendor, which had applied decorative paint to the toys. Allmark said the company would use this recall as an opportunity to put even better systems in place to monitor vendors whose conduct does not meet Mattel’s standards.

“Anytime a company brings a banned hazardous product into the U.S. marketplace, especially one intended for children, it is unacceptable,” said Nancy Nord, acting chair of the Consumer Product Safety Commission. “Ensuring that Chinese-made toys are safe for U.S. consumers is one of my highest priorities and is the subject of vital talks currently in place between CPSC and the Chinese government.” (Source: CNN.com.)

Fisher-Price and the Consumer Product Safety Commission are telling parents to keep suspect toys away from their kids and to contact the company with any questions.

The recall involving lead paint is a first for Fisher-Price and parent company Mattel.

If you purchased any of the recalled toys, you may have a legal claim. For further information, feel free to contact the Law Office of Thomas Glenn Martin by clicking here.

The FDA is warning consumers to throw out all toothpaste made in China after finding a poison commonly used in anti-freeze in toothpaste it checked in three U.S. cities.

FDA said brands of toothpaste from China that contain diethylene glycol (DEG) include: Cooldent Fluoride; Cooldent Spearmint; Cooldent ICE; Dr. Cool, Everfresh Toothpaste; Superdent Toothpaste; Clean Rite Toothpaste; Oralmax Extreme; Oral Bright Fresh Spearmint Flavor; Bright Max Peppermint Flavor; ShiR Fresh Mint Fluoride Paste; DentaPro; DentaKleen; and DentaKleen Junior. (Source: FDA FAQ.)

According to the New York Times, the agency said it had found DEG in toothpaste sold at a Dollar Plus retail store in Miami under the brand name ShiR Fresh. It said nine other brands also contained the sweet, syrupy chemical and warned the products had a “low but meaningful risk of toxicity and injury,” especially when used by children or individuals with kidney or liver disease.

But diethylene glycol was not listed on the label of the toothpaste found in the Miami store. Its presence was detected only because the FDA began testing imported Chinese toothpaste last month. That precaution was prompted by the discovery in Latin America of tens of thousands of tubes of tainted toothpaste made in China.

Over the years, counterfeiters have found it profitable to substitute diethylene glycol for its chemical cousin, glycerin, which is usually more expensive. Glycerin is a safe additive commonly found in food, drugs and household products. In toothpaste, glycerin is used as a thickening agent.

Chinese regulators said their investigation of toothpaste manufacturers there had found they had done nothing wrong. Chinese officials said small amounts of diethylene glycol could be safely used in toothpaste.

The FDA said diethylene glycol in any amount was not suitable for use in toothpaste. (Source: NY Times.)

At a press conference, federal officials said the contaminated pet-food ingredient from China that has sickened dogs and cats nationwide was wheat flour spiked with melamine.

The Food and Drug Administration theorizes the wheat flour was spiked with melamine to make it look more protein-rich, thus more valuable, than it was. China has admitted two companies exported melamine-tainted product. The FDA also suspects that melamine and melamine compounds in the flour are creating a toxic brew that causes pets’ kidneys to fail.

The recalls’ scope has been vast. The FDA’s Pet Food Recalls List contains more than 5,800 products. The FDA has received unconfirmed reports of 4,150 cat and dog deaths since the first recalls in March.

China’s response? “There is no clear evidence showing that melamine is the direct cause of the poisoning or death of the pets,” the Chinese Ministry of Foreign Affairs argued in a prepared statement.

(Source: USA Today; NPR report: Pet Food Deaths: FDA Blocks Gluten from China.)

The California Supreme Court, in a unanimous decision, this past Thursday made it possible for people who become ill from smoking to once again obtain justice from tobacco companies, rejecting a 4 year-old federal court decision that virtually halted all smoker lawsuits in the state.

The 9th Circuit of the U.S. Court of Appeals had ruled that smokers must sue once they discover, or should have discovered, that they are addicted to cigarettes. The federal decision in effect ruled out most smokers’ lawsuits in California, since cigarette-related diseases usually manifest themselves years after smokers have become addicted.

Because the 9th Circuit litigation involved a question of California law, the California Supreme Court, the final word on what state laws mean, took up the matter. And in its decision Thursday, it rejected the 9th Circuit’s interpretation.

In the Opinion (Grisham v. Philip Morris U.S.A.), lead by the Honorable Justice Carlos Moreno, the California Supreme Court stated:

We do not believe that the Legislature, which repealed the tobacco immunity statute [], intended or intends for the repealed statute to be reincarnated, as it were, as a presumption of knowledge about the hazards of smoking that serves to disqualify tobacco lawsuits as time-barred. Indeed, the legislative history of the immunity repeal, recounted by the Court of Appeal in Whiteley, demonstrates that the immunity was withdrawn in part precisely because tobacco company misrepresentations had put into question the extent to which the public had received accurate information about the dangers of smoking.

“It reopens tobacco litigation in California,” said Northeastern University Law Professor Richard A. Daynard, who heads a group that promotes lawsuits against the industry. “The light just went from red to green.”

Sources: Millie Lapidario, “Tobacco Claims Will Start Smoking Again, Thanks to Calif. Ruling,” The Recorder (February 20, 2007); Dan Margolies, “Ruling deals setback to tobacco industry,” The Kansas City Star (February 17, 2007).

The food industry has no reasonable excuse for failing to reduce the levels of acrylamide in food.

1. Dipping potato chips or fries in a solution prepared from a bamboo leave extract for while before subject to thermal processing can significantly reduce the formation of acrylamide. (Source: Zang, Y., et al., “Addition of Antioxidant of Bamboo Leaves (AOB) Effectively Reduces Acrylamide Formation in Potato Crisps and French Fries,” Journal of Agricultural and Food Chemistry, (2007) 55 (2) 523 -528.)
2. Immersion of potato strips in distilled water decreased the acrylamide formation after frying without reducing significantly their glucose and asparagine content. (Source: Pedreschi, F., et al., Acrylamide reduction under different pre-treatments in French fries, Journal of Food Engineering, (2007) 79 (4) 1287-1294.)
3. Dipping potato cuts in a citric acid solution for 1 hour before frying showed 73.1% and 79.7% inhibition of acrylamide formation in french fries. (Source: Jung, M.Y., et al., “A Novel Technique for Limitation of Acrylamide Formation in Fried and Baked Corn Chips and in French Fries,” Journal of Food Science (2003) 68 (4), 1287–1290.)
4. Vacuum frying reduced acrylamide formation by 94%. (Source: Granda, C., et al., “Reduction of Acrylamide Formation in Potato Chips by Low-temperature Vacuum Frying,” Journal of Food Science (2004) 69 (8), 405–411.)

In a new study, published online in The Lancet on November 8, 2006, Harvard researchers have identified industrial chemicals that are the most likely to damage children’s developing brain.

According to the researchers, this “silent pandemic” of toxic exposure helps to explain why one out of every six children has a developmental disability.

A press release from the Harvard School of Public Health reads:

Fetal and early childhood exposures to industrial chemicals in the environment can damage the developing brain and can lead to neurodevelopmental disorders (NDDs)—autism, attention deficit disorder (ADHD), and mental retardation…

The researchers found that 202 industrial chemicals have the capacity to damage the human brain, and they conclude that chemical pollution may have harmed the brains of millions of children worldwide. The authors conclude further that the toxic effects of industrial chemicals on children have generally been overlooked.

To protect children against industrial chemicals that can injure the developing brain, the researchers advocate a precautionary approach for chemical testing and control wherein it is not necessary to wait for scientific certainty to take protective action.

This “precautionary principle” has been applied in the European Union. It favors strong regulations, which can later be relaxed if the hazard proves less than anticipated.

In the U.S., the authors note, the absence of testing and the high level of proof required for chemical-control legislation are the main impediments to the prevention of developmental disorders caused by exposure to chemical pollutants.

A notable exception is California in which Proposition 65 requires businesses to notify consumers before they are exposed to a threshold level of carcinogens and reproductive toxins.

If it ain’t broken, don’t fix it. So the old saw goes. Unless you can create the illusion of a problem, and gain an advantage by selling people on the solution. Enter the National Uniformity for Food Act. (S.3128) (NUFA).

If passed, NUFA will outlaw 200 state food safety and labeling laws, and prohibit state and local governments from setting food safety standards higher than those established by the federal government via the FDA.

The National Uniformity for Food Coalition (NUFC), an alliance of food industry trade organizations, states: “The legislation provides for science-based uniform food safety standards and warning requirements so that Americans in every state are protected equally.”

NUFC coalition members stand to decrease their food labeling costs and, most importantly, gain immunity from liability that currently exists under state food safety laws. For example, in California, candy manufacturers would no longer have to inform children of the toxic hazards of their lead-laced candy as required by Proposition 65.

What NUFC fails to disclose to American consumers, who it claims NUFA will protect, is the following:

1) It ain’t broke. Hundreds of working and helpful state food safety laws will be wiped out by the National Uniformity for Food Act if it is passed. William K. Hubbard, former FDA Associate Commissioner, testified before a Senate committee:

“Not only does the current system work well, but there is little evidence of a problem now that would justify the broad preemption envisioned by the bill, and no reason to believe that there will be a problem in the future. The vast majority of state attorneys general agree with that conclusion, as do the states’ food and drug officials, and virtually all consumer interest groups. That practical consensus of opposition to S. 3128 should be seen as a significant cautionary message
about this bill.”

2) Protecting equally means protecting poorly. Ironically, NUFA does not take the best of state food safety laws and nationalize them. Rather, NUFA outlaws all state regulation of food safety. Although the FDA can theoretically grant a state permission to maintain or enact stricter requirements through a petition process, this process is impracticable. Mr. Hubbard testified:

“In terms of enforcing state safety standards themselves, the bill starts at the top, broadly preempting state safety requirements unless they are identical to Federal requirements. It then allows states to enforce only those state requirements that are identical to existing FDA requirements, or even guidances, which are non-binding FDA advisories to industry…. Further, the bill would not require that FDA step in (even if it had the resources) and replace state and local laws that might be a necessary, further exacerbating the vacuum in safety oversight that the bill would create.”

3) The FDA is already overworked. The FDA, already besieged by criticism for inappropriately excluding and altering its scientific findings based on political influence, will be unable to incorporate and enforce new food labelling requirements. Mr. Hubbard further testified:

“[The] FDA regulatory structure… is under-resourced, under-staffed, and essentially incapable of meeting the growing demands to oversee food production, food additives, cosmetics, dietary supplements, nutrition labeling, foods produced from biotechnology, foodborne disease outbreaks, dangerous new pathogens that infect food, pesticides, and the many other responsibilities of that program. And, most recently, the President has proposed diverting traditional food safety resources toward protecting the nation against terrorism threats to the food supply—a worthy effort, but one that will force FDA to rely even more on state food safety efforts.”

Governor Arnold Schwarzenegger, Senators Barbara Boxer and Dianne Feinstein, Attorney General Bill Lockyer, 38 other state Attorneys General, the National Association of State Departments of Agriculture and the Association of Food and Drug Officials oppose NUFA.

Mr. Hubbard is quoted as saying that NUFA “is a solution in search of a problem” and that food safety should be left to the states. I wholeheartedly agree.

Americans spend up to 90% of their time indoors. Indoor allergens and irritants can play a significant role in triggering asthma attacks. Some of the most common indoor asthma triggers include secondhand smoke, dust mites, mold, cockroaches and other pests.

If you rent and are familiar with any of these conditions in your living space, contact your city health inspector. The inspector can identify violations jeopardizing residents’ health and safety, and has the authority to take the appropriate enforcement action to correct the violations.

Once a violation is confirmed by the inspector, written notice is sent to the landlord indicating the actions required to correct it. Next, a reinspection is conducted to see if the situation has been resolved. If not, the inspector may refer the matter to the city prosecutor for legal action.

It is unlawful for your landlord to evict you or increase your rent in retaliation for your complaint to the city health inspector. If he does so, you may have a claim against him for actual and punitive damages under Civil Code 1942.5. You may also be entitled to attorney fees.

For more information, please contact your local health inspector. For the City of Long Beach, please read this brochure regarding the City’s Housing Inspection Program.

If your landlord has retaliated against you for your complaints to a government agency regarding unhealthy living conditions, contact an attorney. Preserve your rights by exercising them.