Document 5kzmG9Bx7YBqwq3E7dD76q1R8

FILE NAME: RT Vanderbilt (RTV) DATE: 2007 May 15 DOC#: RTV 107 DOCUMENT DESCRIPTION: Chemical Regulation Daily - Health Advocates, State Agency Fault Products Containing Controversial Talc Chemical Regulation Daily Volume: 2007 Number: 93 May 15, 2007 Health Advocates, State Agency Fault Products Containing Controversial Talc Asbestos experts, environmental advocates, state public health officials, and a plaintiffs attorney are challenging the safety of products containing talc mined by the R.T. Vanderbilt Company. ' The most recent action concerns Durham's Rock Hard Water Putty, a product used to patch walls, repair wood, and for sculpting and model building. The Center for Environmental Health (CEH), an environmental organization based in Oakland, told BNA May 4 that it has notified the California Attorney General's Office and the manufacturer, the Donald Durham Co., that the product contains "asbestos and talc containing asbestiform fibers." In January, three asbestos experts wrote to the Consumer Product Safety Commission saying that the Durham putty violates a federal ban in effect since 1978 on asbestos in consumer patching compounds (16 CFR 1304). The petitioners also allege that the source of the asbestos in the putty is talc purchased by Durham from R.T. Vanderbilt. In February, the Connecticut Department of Public Health wrote to the commission asking it to "consider taking action regarding the possible presence of asbestos in talc added in art clay." The letter notes that Vanderbilt's talc appears to be the source of the-asbestos. A CPSC spokeswoman told BNA May 9 that she could not comment on either letter because the commission is investigating the claims. Late last year, a jury awarded $3.3 million to the estate of a New Jersey potter, finding that Vanderbilt's talc was a substantial cause of his death. In addition, four men who claim to have contracted mesothelioma from using Durham's putty at home or work are suing Durham and R.T. Vanderbilt. Talc Mining Firm Responds. Paul Vanderbilt, a vice president of the company, said May 4 that the allegations are false. He said that the company's talc, which is mined in northern New York state, contains tremolite, a mineral found in nature in both asbestiform and nonasbestiform varieties. The tremolite in the R.T. Vanderbilt talc is nonasbestiform, he said. "This is largely an issue because people with a chemical background but no background in mineralogy see the word "tremolite'' and jump to the conclusion that it is asbestos," he said. However, James Webber, a research scientist with the New York State Department of Health and an assistant professor in the School of Public Health at the State University of New York at Albany, said his testing has revealed that R.T. Vanderbilt's talc ore does contain asbestos. Webber, who holds a doctorate in environmental health and toxicology, has published many peer-reviewed articles on asbestos. "When I look at the material, it is very clear to me that it is asbestos," Webber told BNA. CEH Acting Under Proposition 65. According to CEH, Durham's putty is being sold in retail stores in California and over the Internet to Californians without a required safety warning. Under California's Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65, products containing any substance known by the state to cause cancer, birth defects, or reproductive harm must carry a warning label. Proposition 65 allows ordinary citizens to sue businesses for violations of the law. With court approval, citizens may negotiate settlements and collect fines from violators. Because each sale of a product without the required warning carries a $2,500 fine, the total potential liability for consumer items sold throughout the state often reaches millions of dollars. A Durham spokesman said May 9 that the company has received the CEH notice. Caroline Cox, CEH's research director, told BNA that the group has settled most of its Prop 65 lawsuits for amounts much smaller than the total potential liability in return for agreements from manufacturers to remove hazardous substances from their products. "Our goal is to reduce exposure to toxic chemicals, Cox said "We would love to work with Donald Durham to get them to reformulate the product so that it doesn't contain asbestos.'' Mark Todzo, an attorney representing CEH, told BNA that manufacturers faced with a Prop 65 enforcement action sometimes choose to keep toxic substances in their products and conform with the law by putting a warning on the package. If that is Durham's position, CEH could respond by insisting that the warning include the word "asbestos," a move that could be very threatening to R.T. Vanderbilt. "I'll be interested to see if the first contact from the other side comes from a Durham attorney or an R.T. Vanderbilt attorney," Todzo said. Petitioners Seek CPSC Action. The January petition to the Consumer Product Safety Commission was filed by Jerrold Abraham, a doctor in the Department of Pathology of the State University of New York's Upstate Medical University; Barry Castleman, an environmental consultant; and James Millette, a microscopist who formerly worked for the Environmental Protection Agency and currently directs MVA Scientific Consultants, a testing laboratory in Georgia. MVA tested 14 cans of Durham putty and found asbestos in every one. The lab also found that during mixing and sanding of the product asbestos was emitted into the air. The petition also alleges that Durham is specifically marketing the compound to children. The Durham spokesman said the company has filed a written response to the petition with CPSC, but would not provide a copy of the response to BNA or discuss its contents. Castleman told BNA that if the commission finds Durham in violation of the act it should order a mandatory recall. "The manufacturer should have to buy all that stuff back that is out there in the channels of commerce and In people's attics, basements, and garages," Castleman said May 4. Link Suspected With Art Clay. The Connecticut Department of Public Health's petition to CPSC states that clay containing R.T. Vanderbilt's talc used at the Whisconier Middle School in Brookfield, Conn., appears to have contaminated the air in an art room with asbestos. Testing performed for an independent consultant found asbestos in two clays used at the school. The clays were prepared by Amherst Potters Supply of Hadley, Mass., and Sheffield Pottery of Sheffield, Mass A man answering the telephone at Amherst Potters Supply declined discuss the matter with BNA and referred questions to R.T. Vanderbilt, his talc supplier. The man said he was the owner of the company, but would not give his name. John Cowen, president of Sheffield Pottery, said adding talc to clay allows it to fire at lower kiln temperatures than would otherwise be required. Sheffield's talc-containing clay is certified nontoxic by a toxicologist, according to ASTM International Standard D-4236, he said. ASTM is one of the largest voluntary standards organizations in the world. Cowen told BNA that the controversy surrounding R.T. Vanderbilt's talc has gone on for decades and that the company also sells a proprietary talc-free clay that he developed years ago because of the concerns. Sheffield's talc-free product costs only slightly more than talc clays and does not require the higher kiln temperatures of other clays that do not contain talc, he said. According to Cowen, R.T. Vanderbilt's talc has been used by Sheffield and many of its competitors in the eastern United States because of the relative proximity of its mines. Talcs are available from other places, but the shipping costs are considerably higher, he said Cowen said Sheffield supplies clay to many schools in Connecticut. Because of the dispute about R.T. Vanderbilt's talc, Sheffield is offering talc-free clay in its bids to schools "whether they ask for it or not." Bill Berry, president of American Art Clay Co., Inc. in Indianapolis, Ind. said his company used R.T. Vanderbilt's talc until the early 1990s, but switched to another talc to avoid the asbestos controversy. American, the largest art clay seller in the eastern United States, also sells a talc-free clay. Jury Decides Against Vanderbilt. The Connecticut health department's letter also cited the case of Peter Hirsch, a New Jersey potter who died at 53 from mesothelioma, an asbestos-caused disease. Hirsch had used R.T. Vanderbilt's talc to mix his own clay. In November 2006, a jury in New Brunswick, N.J. awarded more than $3 million in compensatory damages to Hirsch's estate, finding that Vanderbilt's talc was a substantial cause of his death. The punitive damage phase of the trial ended in a confidential settlement. Paul Vanderbilt said the company will not be appealing the verdict. R.T. Vanderbilt's Web site states that its talc is used in ceramic clay, dishware, sinks, toilet bowls, and paints. According to the trade magazine Industrial Minerals, the Connecticut-based firm is one of the largest talc producers in the United States. The company is a family business founded in 1916 that sells more than 800 products. Through seven subsidiaries R.T. Vanderbilt operates chemical manufacturing plants, mining, and mineral processing facilities in eight states. Studies done by the National Institute for Occupational Safety and Health in 1980 and 1990 found excess levels of lung cancer and other respiratory diseases among miners and millers employed by R.T. Vanderbilt. Researchers in the studies said exposure to asbestos was the "prime suspect" and that confounding risk factors, such as smoking, were unlikely culprits. In 1999, the New York Supreme Court ruled that R.T. Vanderbilt could not be sued for fraud by 139 employees and former employees who had developed asbestosis, lung cancer, mesothelioma, and other diseases. The workers' attorneys argued that the company had misled the employees by assuring them the air they were breathing at work was safe, but the court held that the workers' only legal remedy was workers' compensation. Four Lawsuits Pending. The law firm of Early, Ludwick, Sweeney & Strauss has filed lawsuits in Connecticut and New York against Durham and R.T. Vanderbilt on behalf of four mesothelioma victims. The first trial is set for July 10. Chris Meisenkothen, an attorney handling three of the cases, said the MVA tests results that have been sent to CPSC were originally commissioned for the lawsuits. CEH's action against Durham relies on the same test results. According to Meisenkothen, although R.T. Vanderbilt has "argued for 35 years that the stuff it sells" does not contain asbestos, in the days before the dangers of asbestos were widely recognized and the substance was regulated, the company actually touted the asbestos content of its talc to its customers. As evidence, he said he plans to introduce at trial a 1966 R.T. Vanderbilt marketing brochure. Meisenkothen said the strongest evidence against R.T. Vanderbilt is the "astronomical rate" of mesothelioma among the company's talc miners and millers. The background rate of mesothelioma in the United States is one case per million people, but from 1948 to the present, seven out of 860 employees have contracted the disease, he said. Talc Removed From Crayons. In June 2000, tests by the Consumer Product Safety Commission found trace amounts of asbestos in crayons. During a simulation of a child vigorously coloring with a crayon for half an hour, however, no asbestos fibers were detected in the air. The commission also concluded that the risk of exposure from a child eating crayons was also small because the asbestos was imbedded in the crayon wax and would pass through a child's body. Nevertheless, at the CPSC's request, the nation's major crayon makers-Crayola, Prang, and Rose Art-agreed to reformulate their products. A spokesman for Crayola told BNA that the company no longer uses talc in any crayons it sells in the United States or abroad. He declined to say the source of the talc Crayola had been using, but a 2001 report by the Research Triangle Institute identifies it as from an R T. Vanderbilt mine. By John Gannon Copyright 2007, The Bureau of National Affairs, Inc., Washington, D.C. Contact Customer Relations at customercare@bna com Contact the Webmaster at webmaster@bna com 1801 S. Bell Street, Arlington, VA 22202 - Phone: 1-800-372-1033 Copyright 2009 The Bureau of National Affairs, Inc All Rights Reserved. Copyright FAQs Internet Privacy Policy License Terms Disclaimer Reprint Permissions BNA Accessibility Statement