Should ‘The Lawyers’ or ‘The Government’ be responsible for regulating building product content?

By: Adam Bernholz

January 22, 2014

And where does liability fall between Architects/Specifiers and Building Product Manufacturers?

All good questions, and at the beginning of this post I’d like to say I don’t have the answers. However, I do want to raise the questions, and frame the issue, in order to point out some of the interesting conundrums facing the industry today.

Asbestos, lead, and ‘Chinese Drywall’.  In the US, there has always been a disdain and fear of too much government regulation, while at the same time there is often a deep loathing for the litigious nature of the U.S. legal system. When people are hurt by something, there are always a number of lawyers appearing on TV, letting viewers know that there is someone willing to take their case for no money down, and a simple percentage of the claim on the backside. This approach has caused an avalanche of litigation around mesothelioma for the major asbestos manufacturers and distributors. This litigation, like most of the law, centers on whether it was ‘reasonable’ that one of these groups ‘knew or should have known’ about the harmful aspects of asbestos. Given the number of ads we all see on TV, these lawyers must be winning against these former manufacturers and distributors. I dare say that virtually all of them are no longer putting these products on the market, but frankly, this is after the fact, once they have stopped making the products, and once the reported harm to innocent victims has already occurred. Fear of litigation may help slow or minimize such similar occurrences in the future, but is this the route we want our society to go, where the major check on actions is a potential avalanche of litigation down the road when the victims have already been harmed and the companies have already distributed the profits and/or are subjected to virtual immediate bankruptcy?

On another hand, lead was banned entirely from paint for residential use by the U.S. Consumer Protection Division in 1978, following litigation. By all accounts, this absolute ban by the government has saved the health, and potentially the lives, of thousands of children. Most of us would agree that creating a healthier living and working environment is important, but at the exact same time, many of us also cringe at the thought of the government coming in and regulating one more activity that we choose to engage in, directly, or indirectly. Where is the line of what is appropriate? I don’t know, and I think it is very difficult to pinpoint exactly. But I do think we should all begin to analyze these very questions.

Red-list chemicals, etc.

I also believe, however, that this issue is on the verge of further heating up, and in a big way. Now that both the UN, as well as many domestic non-profit NGOs, and well-meaning design firms, have called out a list of 100 so-called ‘red-list’ chemicals that are claimed to be potentially carcinogenic, have endocrine disruptors, and a number of other things I collectively refer to as the ‘heebie-jeebies’, because I am certainly not a chemist or scientist. I feel that both the lawyers and the government are starting to watch this much more closely. At what point in science should the government step in, or not step in? When will we see litigation around the selection of building products where some ‘reasonable’ person ‘knew or should have known’ that the products were harmful? Does this ‘reasonable’ person need to know that they are, in fact, harmful, or just could be? Where does this line fall? Tough issues, I feel.

Architects/Specifiers, Building Product Manufacturers

Further complicating this thorny issue is who bears the brunt of the responsibility? Will it be the lawyers saying that a ‘reasonable’ manufacturer ‘knew or should have known’ that these chemicals were, in fact, harmful? Or simply potentially could be harmful? Will it be the lawyers saying that a ‘reasonable’ architect or specifier ‘knew or should have known’ that these chemicals were, in fact, harmful? Or simply potentially could be harmful?

On the other hand, does our society want the government jumping in now and proclaiming that certain chemicals are potentially harmful and are forever banned? What will be that bright line on potential harm? And like both asbestos and lead, what if the underlying chemical significantly improves the underlying performance characteristics of the product? As we know, performance and longevity are two of the most important aspects of what makes a product green…But not really if it makes you sick or could eventually kill you…

Where is that balance? I do not know, and I do not proclaim to know. Similar to my recent post on the building product movement moving like the tides—affected by a number of inputs –  I too feel that this issue will move, I just have no idea of where, when and how it will move, until it simply does just move.

This post belongs to categories: Architecture, Building Product Manufacturer, Safety

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