Too much safety in the playroom

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Americans will never admit it, but there can be such a thing as too much safety – even when it comes to toys from China. At the best of times, America’s attitude to its children borders on saccharine sentimentality (I should know: I have two of them). But after this year’s bumper crop of Chinese toy recalls, parental hysteria has hit new levels – with emotion and politics threatening to pollute rational debate on how best to solve the toy crisis.

For starters, millions of American children suddenly find themselves plaintiffs in massive lawsuits that aim to force Mattel, the giant toymaker, to pay for lead testing for every child “exposed” to toxic toys from China. Several competing class action lawsuits demanding the “medical monitoring” of children who played with recalled Mattel toys have been filed around the country, and on Wednesday a California judge will consider whether to centralise them all in one court.

On the face of it, paying for lead testing sounds like the least Mattel can do: it admits the recalled toys contained lead paint; and everyone knows lead is not good for children. But as Victor Schwartz, a leading US expert on product liability law and a well known tort reformer, points out: “Not every child eats a toy: there should be at least some showing that the child was exposed to some possible hazard.”

The lawsuit would charge Mattel for lead testing for every child who played with a recalled toy at home, or at daycare, or at Grandma’s house – and it would include not just toy-sucking toddlers, but my school-aged children, who have never been known to lick Barbie’s handbag (or any of the other Barbie accessories covered by the recall). The lawsuit lumps together not just different age groups, but a wide range of different toys of varying toxicity. And it does not require even an allegation of injury: it covers every child, sick or healthy, who was “exposed” to a recalled Mattel toy.

In spite of all the hysterical headlines about the dangers of Chinese toys, there are few reports of children – at least yet – who have become ill. Jeffrey Killino, a Philadelphia lawyer who filed one of the class action suits against Mattel, says he knows of “dozens” of children who have showed abnormal lead levels after exposure to the toys but he does not know how many have required any treatment – apart from one case of serious injury.

And, of course, any child who sustains an actual injury from the toys is unlikely to have any problem, in the current emotional and political climate, in winning a lawsuit – or at least a settlement – from the likes of Mattel and other toymakers, not to mention the retailers who sold the toys. The question is whether children who show no current signs of injury, and who may never develop any, should also be able to sue now – instead of later, when the facts of an actual rather than speculative injury can be tested in court.

The obvious response is that lead poisoning is an illness whose symptoms may not be manifest for years – but the same is true of asbestos-related illness, and the US Supreme Court has cautioned against unleashing a flood of medical monitoring lawsuits related to asbestos exposure.

In the best of all possible worlds, every American child would be tested to see if their toys had harmed them. But in the real cost-benefit world we all live in, perfect safety costs money. The heart says that one child harmed is one too many. But the question is: how much we are prepared to pay to make sure that not even a single child is injured?

The market has already taught Mattel a tough lesson about the need to make sure toys that appear under its name are safer in future: in the frenzy of pre-Christmas shopping now under way, many parents are switching to European or American toys, to punish China and those who manufactured there. As always, the solution is compromise.

“We need to strike a balance between protecting our kids and protecting the capacity of corporate America to employ people so they have money to pay for the toys,” says Mike Lyle, a product liability expert at law firm Weil, Gotshal & Manges. “It’s a balancing act”.

There is no such thing as perfect safety – even in America.

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