Despite years of legal wrangling and the instigation of new scientific studies, the safety risk of toluene is not yet clear. NAILS talks to the parties involved in the lawsuit about this important industry issue.
Adds Christopher, “The reason we wanted to keep toluene in our product is because we believe it’s a better product. In our assessment, the issue with chemicals is overexposure, and we don’t think there’s any scientific issue of overexposure. We believe we have a better product with the toluene.”
Could the manufacturers have won their case in court if they hadn’t settled? Says Schaeffer. “The law is on [Chanler’s] side; there’s no question. The way the law is written, it doesn’t ask how much. If you’ve got toluene in it, tell the public you have toluene in it,” Clifford adds that it would base cost the manufacturers an estimated $500.000 to try the case in court, and money was an issue because even the largest professional polish manufacturer doesn’t have that kind of money to risk.
Comments Weil, “If the CTFA had persuaded the court that [its first study in 1990] was a properly done study, they could have all won. I think that people were concerned that it costs money to do that and they didn’t know which way it was going to go. AYS has their study, you have your study. What if you go in and the judge believes the AYS study is correct?”
The terms of the settlement required manufacturers to provide warnings that their polish contained toluene by March 1, 1994, unless they conducted a study that proved to the attorney general’s satisfaction that warnings weren’t necessary. Says Weil, “They did the study, and we said it proves warnings aren’t required for salon customers, but it doesn’t prove one way or another [whether warnings are required] for nail techs. That meant that under the agreement they didn’t have to provide warnings for customers, but they do for nail techs.” But the manufacturers have the right to conduct another study in the future to prove that warnings aren’t required for nail technicians, either. They are currently working on establishing the protocol for the study with the attorney general’s office.
Weil’s main complaint was that the manufacturers study done in early 1994, did not provide information to validate that the test equipment was properly working, nor did it provide information about the ventilation used in the salons tested.
Says Weil, “I think the basic idea is that [the testing] has to be more comprehensive and we have to have more data about things like ventilation. We don’t know what kind of ventilation the salons used or that it was typical of ventilation in salons around the state. If they redo the study in a way that is more detailed, and that study shows toluene as under the [Warning] levels, then they may not have to warn nail technicians [or reformulate their products].”
Chanler says the battle isn’t over yet. “Based on our investigation [of compliance with the warning scheme] in the state we are seeing significant violations by manufacturers who sell to salons. The warnings are inadequate and they’re failing to provide warnings for products sold over-the-counter.
“The agreement is clear: You sell it through retail sale, you have to provide a warning. We are seriously considering legal action and filing for contempt of court, “Chanler asserts.
Rebuts Christopher, “In section ****** of the settlement agreement these is specific language that says the attorney general has the power to formulate the warning scheme. It’s not specified that [this means a warning scheme] for nail techs.
“Since the attorney general concluded that if you walk into a salon and get your nails done you don’t need a warning, it doesn’t make sense that a warning would be required if you walk into a salon and purchase the product.”
Of course, even after the legal battle is forgotten, the future of toluene may be determined by the consumer.
Says Clifford, “I encourage every nail technician to buy toluene-free products, try them, and make their own decision. If they are concerned about toluene, they can go to toluene-free products, just as those concerned about formaldehyde resin can go to formaldehyde-free products. I encourage them all to switch over because they can see what the product is like and decide if they want that product or a product that performs.”
If manufacturers conduct a study with more rigid test controls that proves to the attorney general’s satisfaction that nail technicians’ exposure to toluene is less than Proposition 65’s limit, nail technicians may continue using polish containing toluene without concern. In the absence of a new study, nail technicians must go on information that is now known about toluene – and about working safely – and weight the issue for themselves. The safest road now for all technicians is to understand how to limit overexposure to all the chemicals they work with.