Latin America and the Caribbean

July/August 1995

Litigators want to paste company with `wrongful death' suit
over child's misuse of product

By Dale Kurschner, Editor

H. B. Fuller Co.'s Resistol dilemma is living up to its name: It's resisting all efforts to be resolved. And matters may soon worsen on the issue of Central American street children using the glue to get high. A wrongful death lawsuit has been drafted and could be filed against the firm in July, says Scott Hendler, an attorney in Austin, Texas.

Hendler represents Julia Polanco of Guatemala, who claims her son died as a result of sniffing Resistol. Her suit would seek a jury trial and would be similar to one she filed in U.S. District Court in Dallas earlier this year, according to Hendler. Polanco asked the court to dismiss the lawsuit so it could be moved to Fuller's home jurisdiction, Minnesota.

If the suit is filed, Polanco would have a tough case to prove-- that misuse of Fuller's product led to a death, and that Fuller's glue was to blame, though other companies' glues were likely being sniffed, as well. As Fuller quickly points out, the problem is not with the glue but with the social condition that lead children to misuse it.

But this suit, by itself, is not what threatens Fuller. It's the fact that attorneys such as Hendler and Charleston, South Carolina attorney Michael Brickman have teamed up on such litigation. Social work groups like Covenant House of New York-- critics of Resistol's availability as a narcotic to thousands of street children in Central America--are upping the ante in their campaign to stop its sales by referring alleged victims of its misuse to U.S. attorneys. And even more troubling is the potential for a jury trial--and the negative publicity it could create--on an issue that Fuller has successfully addressed as far as its customers and shareholders are concerned.

"When these situations occur outside the United States, it takes a healthy amount of media coverage to get anybody's attention," says Nick Nichols, a crisis management expert and partner in the Washington, D.C. communications firm Nichols Dezenhall. "Once the debate occurs within our borders--and this all assumes media coverage--a jury trial could prove to be a very significant crisis catalyst for the company."

H. B. Fuller's response to Polanco's possible suit is, "What lawsuit?" according to spokesman Bill Belknap. The company won't comment, even on the Texas filing, unless there is a new filing. And it maintains that it has tried everything possible--warning labels, tighter distribution controls, a change in formula in some countries, and other measures--to keep children from using Resistol as an inhalant. In at least two countries, it has stopped selling Resistol through retailers. "A Decision to pull the product at retail is clearly a move in the right direction," Nichols says. "To hold the company accountable for how its industrial customers behave is beyond rational judgment."

Various media and groups like Covenant House are trying to do just that, however. They claim Fuller is giving lip service to a problem it could solve by adding a foul odor to its glue, or by discontinuing its sales "wherever it is being misused" as the company said would do in 1992.

Indeed, it is statements like that made by Fuller President and CEO Walter Kissling on July 17, 1992, that may hurt the company the most (see sidebar following). "It's a key point to the case," Hendler says. "Representing they would take progressive steps, then not following through with them--that's what tipped the scale on whether Fuller was sincere in dealing with this problem,."

Nichols agrees. "What makes this case worse is the appearance, true or not, that the company's solutions to the problem were not fully exercised," he says. "That could leave the jury, but more importantly the other key audiences, with the perception that the company didn't do what it said it would, and that it doesn't care."

John Schultz, a money manager with Ethical Investments Inc. in Minneapolis, says Fuller has done everything it can to remedy the situation. And he questions the validity of Polanco's claims. "If they were to win this suit--and they will not--it would put any volatile-based business out of business. Makers of paints, aerosols, even gasoline," he says.

In the Texas suit, Polanco among other things alleged Fuller had the opportunity to add ingredients that would make the glue less attractive as an inhalant, but refused; was negligent because it knowingly designed the glue in a way that attracts children; and failed to test the product's attractiveness to, and harmful effects, on children, despite knowing that children were misusing it.

More than any other manufacturer of adhesives, paint, and other chemical products, Fuller has earned a U.S. reputation over the years for being socially responsible. It is a member of the Coalition for Environmentally Responsible Economies (CERES); it has given 5 percent of its U.S. pre-tax earnings to charity since 1976; by 1997, it plans to give 5 percent of its annual worldwide pre-tax earnings to charity.

Given such corporate kindness, it makes little sense that Fuller would be as "wrongful" about Resistol as Polanco and other critics allege. Indeed, Belknap says if anyone's ethics are questionable, it is those of Fuller's critics.

For example, Covenant House, in recent months has accused Fuller of selling a wood treatment product containing the toxic insecticide pentachlorophenol in Central America. it says its representatives can still walk into stores and buy Fuller's brand with that insecticide. it doesn't tell people, however, that Fuller discontinued sales of such products five years ago, and that what it is finding could very well be remnant inventory. When asked about that point, a Covenant House representative says Fuller should have recalled the product.

"We're doing everything we can and what we think is right," Belknap says about Resistol. "But what is the role of the activists in all this? How can they bring about positive change?"

The solution is not for Fuller and other companies to stop selling toxic glues, but rather to help get children off the streets and into productive lives, he says. Fuller has said previously that its goal is to help get children off the streets in Central America. It donates thousands of dollars each year to children's groups aiding in that effort. But Belknap refuses to say how much because when revealed in the past, critics complained it's not enough for an international company with $1 billion in sales and $30 million in net income.

As for Resistol hurting people, "we're no different from people who make Glade air freshener or gasoline," he says. "We make a legitimate product that is sold for legitimate purposes. We distribute it as controlled as we can, and we do everything we're expected to do."

How H. B. Fuller's statements have changed since it said it would discontinue sales of solvent-based glues wherever they're being misused

July 1992
Board of Directors and management state the company will discontinue the sale of Resistol glue in Central America "wherever it is being misused." President and Chief Operating Officer (today CEO) Walter Kissling says, "Until we can come up with a substitution for the solvent-based glues that are sniffed by kids, we will just pull out of the market."

The media responds favorably. In an editorial titled "Kids Before Profits, H. B. Fuller's Way," the Minneapolis StarTribune says, "The company made the right choice on a complex issue. Fuller's board of directors decided to stop selling glue to hundreds of small shoemakers. How many companies might instead have stopped with `it's not our problem that the kids get the glue. We sell to legitimate users.'"

October 1992
Dick Johnson, Fuller's vice president of corporate affairs tells Minneapolis/St. Paul CityBusiness the company has discontinued sales of Resistol to its industrial and retail users only in Guatemala and Honduras, where its misuse is most prevalent. Instead, an adhesive similar to Resistol is being sold to industrial customers, he says.

September 1993
Spokesman Bill Belknap tells the StarTribune the company is still selling Resistol to its industrial customers in Guatemala and Honduras, but has tightened its distribution system, and is no longer selling the glue through retail outlets. Activists say there are many channels through which glue at factories winds up in the hands of children.

July 1995
Belknap says the company's efforts (stopping retail sales in two countries) have proven ineffective--proof, he says, that the problem is not with the glue but the social conditions that lead children to want to inhale it. "We're no different from people who manufacture Glade or who make gasoline. We make a legitimate product that is sold for legitimate purposes."


Copyright 1995 BUSINESS ETHICS magazine

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