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US diplomatic collusion with fierce industry lobbying in Europe to avoid a ban on phthalates in children's toys These two articles appeared in the German newspaper Die Zeit, 25 November 1999, reporting on industry lobbying efforts to avoid the phthalate ban in children's toys. The articles were translated by for Health Care Without Harm and distributed on that organization's listserv on 13 March 2000.
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TEETHING
RINGS IN BRUSSELS
Scenes from a lobbying war Maurits Bruggink, Bernardo Delogu and Axel Singhofen are all happy fathers fond of children, especially very small children. They feel children as a calling, and their work involves children too. In Brussels, they are paid for their involvement. Maurits Bruggink, Bernardo Delogu and Axel Singhofen are all happy fathers fond of children, especially very small children. They feel children as a calling, and their work involves children too. In Brussels, they are paid for their involvement. Maurits Bruggink, a Dutchman and father of five-year-old twins, is the European toy industry's chief lobbyist. Bernardo Delogu's two children are older. Nonetheless, as section head for consumer and environmental affairs at the Brussels Commission, he has in the past few weeks had to keep recalling the time when his daughter Ariana was still a baby and "sucked on absolutely everything." Her favourite objects for chewing on were teething rings made of brightly-coloured plastic. As an Italian EU official, Bernardo Delogu now wants these banned in the name of Europe. It's "high time" for this too, says Greenpeace's toxics expert, Axel Singhofen. He has been working committedly for a stop to the sale of infants' toys made of soft PVC since the autumn of 1997, and with even greater commitment for the last six months -- his daughter Lilian was born in the spring, and since then 34 year-old Singhofen has observed how "babies conquer the world by putting everything into their mouths." Having said which, his voice turns stern. "So we have to prevent our children from biting on anything poisonous." In other words, an alarm has been sounded. "Poison in children's toys," ran a headline in the Bild am Sonntag. The newspaper wrote: "Cancer in squeaking ducks." The substance producing these nightmares has an awkward name -- phthalates. This is the collective term for six different chemicals with a common purpose. This is to act as cheap softeners which turn rock-hard PVC into pliable yet firmly-shaped plastic. The only trouble is, this miracle of chlorine chemicals is anything but harmless. Phthalates are then in PVC so loosely that they can easily escape -- for instance, when babies suck or chew on it. The consequences? Greenpeace's Singhofen quotes EU studies which warn of damage to kidneys, liver and testicles. He therefore calls for an immediate ban, before Christmas. Phthalates for babies, he says, is a most serious matter. It
takes two years for an EU Directive to take effect Whenever it comes to teething rings in Brussels -- someone or other blocks, delays or prevents a decision. There aren't any nasty shady characters or sly manipulators noticeably at work here. Lobbyists have realised the Commission can't dictate laws and simply sign papers. To alter Directives the way they want them to be, those doing lobbying apply themselves in the world of the EU where the political apparatus is most vulnerable: that is, in the matter of time. If they succeed in delaying laws which are undesirable to them they have achieved their bottom-line goal. The chemicals and toy industries exploit every month that goes by without an emergency ban. Not just squeaking ducks are at stake here. The strategic interests of companies are. The latter fear a ban on softeners in toys will trigger a chain reaction. First teething rings would be taboo, then other PVC products, and one day perhaps the whole of the chemicals industry would come to an end? The tussling over the teething ring is symptomatic of what takes place in Brussels. It shows the unspectacular but effective means by which industrial interests fight there, and how quickly the machinery of the EU Commission gets stuck. And how easily the EU becomes a stage for lobbyists from outside Europe. It all began "with a call from Exxon some time at the beginning of 1998", recalled Michael Gallagher, a diplomat at the US mission in Brussels. As such he represented "US interests of all kinds." He was at his post when Exxon Europe, the biggest producer of phthalates on the continent, was incensed at EU Commission plans to ban softeners in PVC toys in Europe. Mike Gallagher promised he would attend to the matter. Whereupon he "spun threads" between Brussels and the 15 capital cities of the EU, where necessary mobilizing support from Washington. This can all be read in black and white -- in copies of letters, faxes, e-mails and notes from telephone calls, which Greenpeace was able to look at through the American Freedom of Information Act. Since then the press office at the US mission, if asked, says it is "it is diplomatic representation, not a lobby"_; and this stupid phthalate story was anyway "an absolutely untypical case." An "absolutely normal" case for Mike Gallagher was when, on 27 February 1998, he sent an "action request" -- signed by his boss -- to the US embassies in the fifteen European capitals. His esteemed colleagues were "urgently" asked to lodge a protest with all the old world's ministerial officials awaited at the first debate on phthalates in the EU Committee on Product Safety Emergencies. The goal was to "state the US industry's misgivings" and for the moment not allow there to be "a decision placing restrictions on PVC in toys." It worked, and most EU countries in any case still look skeptically on a phthalate ban. In the spring of 1998 the toy industry's opponents -- with the exception of the Austrian and Danish governments -- were very much on their own in Brussels. The EU consumer affairs unit headed by Bernardo Delogu, together with his agile boss, the EU Commissioner Emma Bonino, were preparing an initial draft for a ban. But Europe's toy and chemicals industries had already mobilized Martin Bangemann, the pro-industry Commissioner for industrial policy. In the meantime Mike Gallagher had sought to win over the EU Trade Commissioner, Sir Leon Brittan. He reported succeeding -- "VICTORY, well, of a sort," he typed on his computer when the EU Commission still hadn't made a decision to ban phthalates on 20 May 1998. "We have kicked the can down the road," he said, meaning delay tactics had worked, "two to three weeks" had been gained, and "everything seems under control, at least for the moment." Gallagher keeps a permanent watch on the Commission. He has thrice invited chemical and toy industry representatives to meetings on strategy, with representatives from Exxon and Mattel also always present there. Both these companies appear very satisfied with the loyal service provided by US diplomacy. "Exxon Chemical tells us our input has been very effective," the American Embassy in Brussels reported on 3 May. It is nonetheless doubtful if its influence really is that significant. Both Brittan and Bonino vehemently deny having been tackled by the Americans. In the summer of 1998 Gallagher was all at once no longer interested in PVC toys. After tough struggles, Emma Bonino had lost the vote for a ban on softeners. This meant the matter was shelved. At the same time Greenpeace brought public attention to the US Embassy's lobbying in Brussels. A few months later the US Vice-President, Al Gore, managed to make a veiled apology. At Clinton's instigation he had directed the US Commerce and State Department to "refrain from any actions to discourage individual countries from implementing precautionary measures they deem appropriate to restrict the marketing of products containing phthalate." In other words, the toxin in infant toys is from now on a matter for Europeans. Not that this necessarily makes a ban on softeners any easier. For the European industry's lobbyists are in no way less clever than their American counterparts. Lobbyist
lives by clients' fears Maurits Bruggink is an established lobbyist for European affairs. A legal expert, he speaks five languages and is aware of what the future will be like for people doing work like his. "My work lives from crises," he says. He lives by his clients' fears -- and the Commission in Brussels engenders a lot of fear as it keeps watch over competition and prevents cartels and illegal state aid; or, as the trade authority, blocks important imports through dumping procedures. Or, as the legislature for the European common market, it can, for example, ban softeners in toys. There are twelve, perhaps thirteen thousand such consultants now hustling about in and around European institutions. Those regarded as dominating the scene are the notary publics and business lawyers, since the law is the be-all-and-end all in Brussels. A hundred thousand marks is easily spent on the draft of a good lobbying strategy. Only flourishing corporations can afford the consultants' fees, which can be as much as 750 marks [approx. $400] an hour. Power relationships are then quickly evident. There are 100 representatives of private industry, it is estimated, to one lobbyist from the non-profit-making sector. Even employees in big industrial federations quietly complain about the overbearing power of the corporations. "They buy exactly as many people as they need. And whoever has a lot of staff gets to find out everything here." Meaning: money obtains every piece of information -- not through corruption but by having strength in numbers of staff. Despite this, (paid) non-governmental organization activists are also conquering Europe's broad fields of environmental and consumer protection policy. "For every twenty calls from industry there is one enquiry from an NGO," says a European Commission official. The biologist Axel Singhofen from Greenpeace is among these. Sometimes he writes analyses, sometimes he faxes a letter of protest. He earns in a month what his opponent in lobbying, Maurits Bruggink, reckons on after ten hours of work -- 6,000 Deutschmarks before tax. Brussels is a difficult place for people like Singhofen. The environmental organization's most powerful weapon is "agenda setting" -- generating political pressure through spectacular direct actions. The protest against toys containing phthalates began with attention-grabbing actions in department stores and supermarkets in 1997 (see article below, All a Matter of Taste). But in Brussels the effect of such actions dissipates rapidly. In the summer of 1998 a chemical industry lobbyist in Brussels imagined all efforts to ban PVC toys to be "Dead. Dead once and for all."Emma Bonino had then just failed with her attempt to see a ban on phthalates. The ball, however, was as a result back in the national governments' court -- and environmental and consumer protection organizations are very much stronger in national campaigns. In Italy, Austria, France, Sweden and Greece they produce public pressure and have been much more successfully a cause of suffering for the toy industry than in the European capital. In Germany it took until July this year before things changed. Then the red-green government put PVC softeners on the banned list. "The great European chemicals industry has failed miserably," complains Bruggink. "As everyone knows, the best lobbying in Brussels is useless without national backing." In the meantime eight EU member-states have gone their own way and banned phthalates in their countries; and nowhere are the regulations identical. Each EU country can delay another's ban by several months by placing an objection. This is precisely what Holland has done in the case of the German ban. Before this Germany did exactly the same with Sweden. The pressure in Brussels to formulate a uniform ban is now increasing once more on account of this confusion. Bernardo Delogu, the Commission official, would have acted long ago, but for a long time one important precondition had not been met -- there had to be a clear "scientific basis" -- a firm risk assessment by toxicologists declaring phthalates in teething rings to be a "serious and direct hazard" to infants. PVC lobbyists in Brussels are spreading the message that there is "no real hazard" in the teething rings, and refer to people who "have drunk the stuff in laboratory trials -- and until today are all bright and cheerful." ECPI, a federation founded by phthalate producers themselves, accuses the Greenpeace organization of pure panic-mongering; they are not concerned with protecting children, they say, but with opposing the chemicals industry itself. Carrying out sound research from which conclusions can be cleanly drawn is something the EU Commission is in a good position to do, wreathed as it is by excellently staffed scientific committees. In these, independent experts meet regularly so as to give politicians unequivocal reports and statements. That's the theory. In practice, things look different. The Scientific Committee for Toxicity, Ecotoxicity and the Environment has written four reports on phthalates in twenty months -- but the argument about the scientific basis to a ban on softeners goes on, because the lobby is heavily involved here too. The secretary for the toxicity committee has now received and filed over 180 statements from institutions, federations and industrial concerns -- all on the subject of phthalates and teething rings. Blurring the borderlines between research, science and lobbying is a task undertaken by enterprises like the Weinberg Group. This consultancy firm last year mobilized five experts in the struggle against an imminent phthalate ban. Their reports warned of taking "overhasty action." Two of the experts still sit on bodies in Brussels. In a chew and spit test in trials in Holland they also helped to establish limits for phthalates in PVC toys which babies could tolerate. This didn't happen without reason -- a method for measuring and testing recognized by all experts would have been able to avert a total ban. In summer last year the Weinberg Group provided just what the industry wanted in the shape of a report which warned against an EU-wide phthalate ban and "further studies." While the EU Commission reproached Weinberg's paper for being scientifically incorrect and "politically motivated", discussion on a ban on softeners failed to move forward. The issue was shelved for over a year. Hendrik Schlesing, the director of Weinberg's office in Brussels, said his "scientific advice" had nothing in common with shameless lobbying. Schlesing did not want to say who -- according to rumours this was the US chemical federation, the CMA -- had commissioned the report. "Professional ethics and contractual obligations," he said, "forbid that." Who provided the money was of no consequence at all. Despite being officially disapproved of in a code of conduct, lobbying under another guise and talks on behalf of anonymous clients are still the practice in Brussels. It is in any event difficult to achieve something in the long term. "As someone lobbying I am only in a strong position if the people I talk to at the Commission trust me," says one person representing the interest group. Failure to establish this closeness to the political apparatus means to remain without influence, and so unsuccessful. No industrial lobbyist would have been able to prevent what happened on the morning of 3 September 1999. David Byrne, an Irish lawyer and EU Commissioner-designate for consumer protection, introduced himself to the European Parliament in a baptism of fire. Three months earlier he had no idea about the job. He certainly didn't know anything about phthalates in PVC teething rings. It was the very thing he was asked about, at about 9.30, by a European MP. What was he going to do? Byrne's brow furrowed. Phthalates in toys, he said, were without doubt "a serious hazard to children's health." He then went on to say vigorously, yes, he wanted to do something about that, with a ban, one which would be imposed quickly. As he was talking he glanced at a piece of paper. It was a note written to him by Bernardo Delogu, the chief expert in Byrne's Directorate-General. Two minutes later it was decided: in the matter of softeners the new EU Commission would carry on where Commissioner Emma Bonino many months earlier had left off -- debating an "emergency" regulation. With EU officials prompting Commissioners, they are definitely powerful in Brussels. Every lobbyist therefore seeks those he can trust among the EU bureaucracy. Trading and industrial company consultants are at work everywhere, most fruitfully of course at the Directorate-General for Industry. Organizations like Greenpeace on the other hand concentrate on the Directorate-Generals for Consumer Protection and the Environment. The Industry Commissioner Martin Bangemann and his Directorate-General managed to put the brake on what his colleagues in consumer protection and all the Commissioners next door to it attempted. It was enough for the industrial interests, which gained time. The Commission's internal blockade seemed complete in the spring, when two completely contradictory bills for dealing with phthalates in teething rings ghosted through EU offices. Now, however, since 3 September, Byrne has been shaking things up. Furthermore, the industry lost its most important allies at this very moment. The successor to the pro-industry Commissioner, Martin Bangemann, was a certain Erkki Liikanen from Finland. [Headline inserted in body of text] What the Commission is now proposing as an EU ban falls well short of the regulations made by individual member states.Only teething rings and rattles made of PVC are to be withdrawn from sale. Squeaky ducks and other dolls may continue to be sold. They have a sticker saying "not to be put in the mouth." Babies are supposed to pay heed to this. Liikanen -- at that time still Budget Commissioner -- had actually voted for EU Commissioner Bonino and her draft for an immediate phthalate ban. What ensued still incenses chemical industry lawyers today. Byrne and Liikanen directed their staff -- "just like that" -- to work out a compromise draft. Inside a week it had all been done -- "behind our backs." The indignation at "this betrayal" is real. But the final spurt is instructive too. If the Commission's departments are of one mind, they act very quickly, and lobbies can hardly get a foot in the door. Even Greenpeace knew little about it. "What could those lobbying have had to say to us," an EU official smiles proudly, "we knew all their arguments long ago." This sounds confident, like the credo of an independent administration. This is not the whole truth. All the consultants and all the reports certainly didn't force the bureaucrats to do anything. At the same time, one and a half years of 'public affairs' --talk by talk and word by word -- have minimized their room for manoeuvre and narrowed down the visible political options. What the Commission is now proposing for an EU ban is far less stringent than the regulations of all its member states. It is also less than what Bernardo Delogu, working for the Commission, wanted. Only teething rings and rattles disappear from shops, while squeaky ducks and dolls that contain phthalates are allowed to go on being sold. In two years they will be adorned with a label -- "not to be put in the mouth." Babies are then supposed to follow the instruction. Even this is not decided yet. Under fire from the lobby, the officials who had traveled in from the capitals hesitated to agree to the emergency ban on Monday. Those from Germany wavered too. The 'emergency' has again been deferred, to next week. Does this mean going back to square one all over again? Suddenly, to the gloating pleasure of chemical industry, some EU toxicologists dispute they had ever said phthalates were hazardous to babies. And at the last minute Maurits Bruggink, the fox in the service of the manufacturers, thought up another manoeuvre to oppose the imminent ban. -- For the toy industry to now offer to withdraw phthalates from teething rings voluntarily. Why did they wait until now, after over two years? 'If I had conceded this earlier,' says Bruggink with a grin, 'I would now have to be making entirely different concessions.' This makes Axel Singhofen, the man from Greenpeace, visibly furious. The lobby was conducting 'nasty games with the health of our children, and Europe lets it do this.' Bernardo Delogu, the Italian EU Commission official, would never let his words get carried away that far. He takes a deep breath -- and is silent. Finally he says, "If you lose patience easily you can't work in an institution like this." All a Matter of Taste The
European Union's member countries are proceeding against toys
hazardous to health in different ways. The trade is exploiting
loopholes. Christmas will soon be here. Fortunate are those whose children are too small for hugely expensive roller blades or computer games in which virtual blood spatters. The hands of small children reach instead for plastic Plutos and Teletubbies. Suddenly big fingers reach in between, sweep the rows of rubber grins off the shelves, put them in a great big pile and hold up banners saying, "No environmental toxics in children's mouths." This is what happened on 2 December 1997 at Toys'R'Us in Hamburg and at Karstadt in Berlin. It was Greenpeace -- and the shops reacted promptly to their protest. Just one day later Karstadt withdrew baby toys made of soft PVC from all its shops. On 5 December other big departments stores -- Kaufhof, Hertie, Kaufhalle and Horten -- followed suit. As did the big mail-order companies like Quelle and Otto, drugstores and toy shops. 'Within a week about 70 per cent of retailers had removed baby toys made of soft PVC from their shelves,' says Manuel Fernandez from Greenpeace in Hamburg. Only the American retail chain, Toys'R'Us, declared it sold only toys which met the legal regulations and norms in the country concerned. At this time there was in Germany no legally binding restriction on the amount of phthalates in teething rings, ducks and other toys that would get chewed on. The Federal Institute for the Protection of Consumer Health and Veterinary Medicine, the BgVV, nonetheless recommended that "volatile migrating substances [this includes phthalates - ed.] other than water ought not to exceed 3.0 milligrammes per square centimetre per hour." In the toys analysed by Greenpeace, 60 per cent of the contents of some of which were phthalates, this figure was exceeded 16 to 32 times over. Under public pressure, Toys'R'Us finally stopped selling all soft PVC teething rings on 14 January 1998 -- at least this was what officially announced. In a number of other countries in Europe, in Sweden, Belgium and Holland, for example, the government called on manufacturers and retailers to take teething rings containing phthalates off the market without delay. The Swedish industry tried to delay the deadline to the ban in order to sell products which had already been made. In Holland, hardly anyone responded to the appeal. In Belgium people from Greenpeace still found toys made of PVC at the Maxi Toys company, which belongs to Toys'R'Us, in November this year. In Italy the chemical giants EVC (European Vinyls Corporation) and Solvay brought a total of four suits against Greenpeace after people working for the organisation had publicly called on toy manufacturers not to use PVC in toys any more. They were accused of impeding competition and defamation. But the environmental organisation was so powerfully supported by regional bodies that within no time the Italian authorities declared a ban on baby toys containing phthalates too. Greenpeace Italy rejected a settlement outside court now proposed by EVC and Solvay. The organisation wants to use the proceedings in March to make a broader public aware of the problems of PVC and children's toys. France and Austria leading way French and Austrian parliaments were the quickest to react to the studies on toys containing phthalates. In January this year Austria was the first EU member country to put into force a law banning plastic toys containing phthalates made of soft PVC for children under three years of age. In France a ban of this kind has been in force since July 1999. There all such goods were supposed to have been called in and taken off the market. Implementation of the bans, however, has been going anything but smoothly. Austria declared a deadline of four months for the trade to rid shops of soft PVC toys for children under three. In spite of this, trade authority inspectors had to be deployed in shops this summer so as to cast out stocks containing phthalates. And in France no manufacturer notified large amounts of toys containing phthalates being sent back by shops. The retail trade in Germany has been relaxed in its reaction to a possible ban by the EU. "We took baby toys made of soft PVC out of our assortment two years ago," says the Karstadt department stores spokesperson, Elmar Kratz. "If there is a ban now, we shall first wait to see how the manufacturers react." But toys containing phthalates which are part of old stocks keep reappearing in shops. In July this year, for example, teething rings were discovered in a chemist's in Hamburg. Even the "CE" symbol found on most toys proves nothing more than that the doll or teddy bear meets European Union standards -- and these still don't contain any ban on phthalates. This means parents have to remain watchful. It is not impossible that shops right now, especially, will try to sell off stocks from its stores. At Toys'R'Us in Hamburg, for instance, people from Greenpeace a few weeks ago could not find any teething toys containing phthalates in the baby department -- teethers made of soft PVC had been put innocuously among the dolls, teddies and soft toys on other shelves. Translator's note: Quotes are translations back into English from German, and not the original word-for-word quotes |