Most of you have no doubt heard about the New York State Department of Health's recent attempt to impose a ban on the sale of figurines containing lead in the state.
The ban imposed without warning three weeks before Xmas was calculated to inflict the greatest possible amount of economic damage on the miniatures industry in general, and it was especially destructive of businesses in New York like MiniFigs and the numerous hobby shops which cater to gamers and collectors. Figurines containing lead were deemed of such an immediate threat to the health of the citizens of New York that a ban could not wait, as per usual practice, until such time as a Health Department hearing was held.
The Sportsman Center is a 300-acre facility containing shooting ranges and owned by Westchester County located in the town of Cortlandt, and enclosed by the county-owned 1500 acre Blue Mountain Reservation. The Sportsman Center has been in operation for 31 years and its soil, by some estimates, contain as much as 500 tons of spent ammunition. According to local environmentalists, lead is seeping into the groundwater, ponds, and marshes which feed the animal life of the Reservation. There is an elementary school a half-mile from the range. The sediment of a stream running next to the school has been determined to contain substantial quantities of lead.
Westchester County is being sued by Mr. Scan Heverin, whose two daughters now have approximately double the normal level of lead in their blood. Mr. Heverin, who is in embroiled in a custody fight with his wife, Lisa, the shooting range cashier, maintains that his daughters' exposure occurred because they lived for a time in an on-site apartment maintained for range employees. Westchester County denies that the children were exposed by contamination at the range. County Health Department inspectors seized several painted fantasy figures found in the girls' bedroom. County officials told Mr. Heverin that the figures had been tested for human bite marks and saliva. Unofficially, he was told that results were negative. However, despite requests, he was refused copies of the tests, and the figures were never returned to him.
Westchester officials have claimed that perils from the range have been exaggerated, and that no imminent danger to wildlife and or human beings is posed. However, no county testing of the children at the elementary school has been conducted to determine exposure levels. County Health Commissioner Mark Rapoport has said that there is no evidence that the range was responsible for the Heverin's children's elevated blood levels, and that he is convinced that the figurines were the likely cause. He has said that the children would have literally had to cat mud at the range to ingest lead. However, he has not claimed that they ate any figures.
Westchester Country's position that the shooting range offers no immediate public health problem is not shared in many quarters. The Federal Environmental Protection Agency has ordered the county to come up with a plan for removing the lead at an estimated cost of more than $2 million. Westchester is also being sued in Federal Court by Cortlandt Watch, an environmental group, for violating the Clean Water Act and other Federal statutes. The lawyer representing these groups is Robert F. Kennedy Jr.
In addition to the $2 million-plus clean-up costs, Westchester county faces possible significant financial liability if the source of the lead contamination of the Heverin children is held to be the county-owned facility. However, should the source of the children's elevated lead-levels be proven to be figurines containing lead, as is maintained by Westchester Health Commissioner Rapoport and other county officials, or least the source of exposure be rendered ambiguous, then Westchester would have a much better chance of avoiding any financial consequences. Westchester Department of Health brought the figures to the State Department's of Health's attention, forwarding at least some of the figures seized from the Heverin home.
The State Health Department tests to determine if handling of metal figurines could result in absorption of lead through the skin of the fingers, transmission from hand-to-mouth, or in the case of small children, from placing the figurines directly in the mouth. The Department discovered that there was no tried-and-true scientific methodology for making such a determination. The Department would have to create its own scientific protocol. It is interesting to note that before the State Health Department was apparently already on record as stating the figurines rather than the shooting range were responsible for the Heverin childrens' elevated lead levels. On what scientific data they based this on is unclear.
On December 2, 1993, NY State department of Health issued an Order For Summary Action placing and immediate ban on the sale/or distribution of lead figurines in New York State. Named in the ban were eight companies whose products the Health department had been able to purchase in hobby shops in the Albany area. These were: Citadel Miniatures (Games Workshop US), GHQ, Grenadier Models, Lance & Laser Models, Miniature Figurines, Ltd., RAFM, Rai Partha, and West End Games.
The hearing was set for December 15, in Albany. Interestingly, The State Department of Health didn't feel that the possible 500 tons of lead leaching out of the ground into the local water supply at the Sportsman Center constituted such an immediate danger. The center is still very much open, and additional lead is regularly being deposited into its soil.
The industry's position was unequivocally that its figures represented no threat of any kind to anyone in New York or any where else. However, the burden of proof at the hearing would be on the industry, not on the Health Department and 13 days was not a lot of time to cre ate an effective defense. On the other hand, there were shops in New York which derives 35 to 40% of their sales from figures and did 50% of their entire year's business during the Xmas season. Time was absolutely critical to them.
Fortunately, there was a tremendous amount of cooperation with the miniatures industry with everyone pitching in to help as much as they could. All understood that this was not a local issue, and that New York was simply the first domino if the ban was allowed to stand. Attorney Marc Rubin, one of the owners of Rai Partha lent his expertise to evaluating the kind of legal help that we would need. Marc brought on board Mike Boylan, the chief litigator at Marc's Cincinnati law firm to run our side at the hearing. We also secured the services of Grayton Grant, a N. Y. environmental attorney and former Deputy Commissioner of the New York Department of Environmental Conservation. Finally, we secured the services of Andrew Rose, of a highly regarded Albany law firm to file a Temporary Restraining Order in State Supreme Court seeking to enjoin the Health Commissioner from enforcing the ban. This was necessary as the Health Department Hearing was non-judicial even though held before a Administrative Law judge, The Health Commissioner didn't have to abide by it.
The industry attempted a compromise with the Commissioner the week before the hearing - the industry would agree to convert to lowlead or nolead pewter alloys over a year if the Commissioner would immediately lift die ban.. While Health Department officials seemed to be interested in the deal, Health Commissioner Chassin declined to accept the proposal. Apparently, removing the ban would have been politically embarrassing for the Commissioner after all the publicity it had received. the wire services having flashed the news all over the country.
The Hearing was conducted before Administrative Law Judge Jonathan M. Brandes on December 15. It began by the judge clearing the courtroom of demonstrators carrying signs proclaiming: SUPPORT THE LEAD BAN. The first day saw Health scientists explaining the tests they had devised to monitor lead removal from figures by handling. The Department was so proud of their test protocols that one of the Health officials had told one of the industry people not to even bother questioning the Health Department's science.
However, under painstaking and meticulous cross-examination by Mike Boylan, serious flaws became apparent in the testing procedure. The figures were rubbed with filter paper, and the paper subsequently measured for lead-residue. Mike Boylan got Department scientists to concede that there was no way to rub the figure precisely the same way each time with the filter paper so that any degree of standardization could be imposed in terms of what amount of lead-residue was deposited on the paper. Each figure in their sample was subjected to 5 rubbings, then the amount of residue on the paper in each rubbing was averaged to determine a mean. However anomalous results (exceedingly high or low values) were not deleted from the average, disproportionately influencing the final average.
There were other problems with the Health Department tests. They used the rate of absorption for children aged 1-186 days which is 10 times the rate for those aged 2-5 years - the age group in question to arrive at its results. The Health Department agreed that the 2-5 year olds who might put figures into their mouth was the age group of interest. There were similar problems with their artificial saliva tests. Ultimately the damning thing about the State tests was they simply isn't seem to be reality based.
At the end of the first day, Mike Boylan told members of the industry that he felt that the judge was definitely unimpressed with the State's science. However, Mike felt that the industry had to present an expert to refute the tests. The industry had already spent a large sum of money on legal representation and the well was running dry. Fortunately, Todd Fisher contacted the HMGS board that evening. The HMGS came through, agreeing to underwrite the cost of bringing Dr. Richard D. Putnam in from North Carolina.
The next day after an examination of Dr. Putnam's three pages of credentials, including his work as a consultant for the Department of Defense and the EPA, there was no serious attempt to question his qualifications. Dr. Putnam expressed serious reservations about the State's testing protocols, reinforcing with his expertise many of the points Mike Boylan had already brought out. The Health Department put a pediatrician on the stand to explain that ingesting lead was bad for children. Not surprisingly, no one disagreed with him.
When it presented its evidence, the industry's position was that there was no actual case of figurines ever having been demonstrated to have caused harm to any person in New York or anywhere else. The industry presented the results of OSHA mandated blood level test of their employees handling lead. The Federal standard is less than 25 micrograms of lead per deciliter of blood measured at normal adult level. By example an employee of MiniFigs who had been handling lead without gloves for 16 years -- thus having thousands of hours of exposure -- has always measured under 5 micrograms per deciliter the lowest measurement the test can record! This would seem to make the assertion that occasional recreational handling can cause lead contamination open to question. The industry presented much evidence to illustrate that its customers were not children. Numerous examples of packaging, all containing the caution: NOT RECOMMENDED UNDER AGE 14, or similar wording were presented. GHQ lost a copyright infringement case several years ago as the Federal judge declared that GHQs models were obviously marketed for adult collectors only, whereas the alleged infringer's plastic figures were for children. This ruling was also offered in evidence. Testimony described a 1200 figure MiniFig diorama displayed in the N.Y. Metropolitan Museum of Art for seven years, and showed that lead figures by various companies were to be found at West Point, Gettysburg, The Bunker Hill Monument, and in museums, national landmarks and historic sites all over the US.
One of the most effective witnesses was David Hornung, who testified simply as a hobbiest with no commercial interest in the industry. He described the painstaking care with which gamers paint and prepare their figures; the amount of time and money they invest. He said that his figures were in a way his art, and this statement seemed to especially impress the judge. He made it clear that with all the time and effort a hobbiest expends, he is not likely to allow his precious collection to fall into the hands of small children. Hornung's job also required that he be tested yearly for lead levels, and he never had elevated lead levels as the State's attorney learned when he asked if Mr. Hornung had ever been tested.
Finally at 4:00 PM, the hearing concluded. After a short recess, the judge rendered a verbal bench opinion (his written opinion would take some time).
I find that the sale and distribution of lead figurines does not constitute an immediate danger to the public"There is absolutely no evidence of actual ingestion or poisoning of anyone by lead figurines in this state "There is no evidence that young children use these items""validation to real life )(of Health Department tests) is missing""the danger associated with lead in these objects really is a no danger in that these objects are not intended for the use of little children and that therre great incentive for those who use them to keep them away from little children therefore find that the order of December 2nd should be lifted and should not be sustained"
On that Friday, Mr. Andrew Rose, Esq. appeared for the industry in State Supreme Court where he sought and obtained a suspension of the ban against figurines in New York State. Shortly after 1:00 PM, hobby shops in New York began learning that they were again free to sell figures.
That is where the matter now stands. The Health Department has no plans to appeal the injunction against it. However The NY legislature has enacted a lead safety law which is due to come into force in April 1993. This law gives The Health Commissioner the right to regulate the amount of lead which may be used in various products and industries. They have made no secret of their intention to demand zero-lead wherever possible. Having handed that commissioner a highly embarrassing public defeat, the miniatures industry can hardly expect them to be more kindly disposed to us once it is armed with its new powers.
The fight isn't over and may have to be fought in every state, a very costly process. a defense fund has been set up under the auspices of GAMA to support the defense of lead miniatures.
More Courier Dispatch News About the Hobby.
- NY State Attempt to Ban Lead Figures Fails
Product News
Publications Received
Paladin's Opinion about HMGS
HMGS News
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