Fees to Treat Lead Poisoning Defended : Courts: Lawsuit seeks to block efforts by paint and oil industries to upset ’91 law.

A coalition of legal, health and child advocacy groups filed suit Thursday in Sacramento to block a paint industry effort to overturn California’s Lead Poisoning Prevention Act.

The 1991 legislation required that the petroleum and paint industries help defray the costs of prevention, early detection and treatment of lead poisoning in children through fees of 2.4 cents per gallon of paint and less than a cent per gallon of gasoline.

Last April, two paint companies and the California Paint Council filed suit against the Department of Health Services in Sacramento Superior Court, calling the fee unconstitutional. “What we’re trying to establish is that these so-called fees are actually (illegal) taxes,” said Matt Dustin, executive director of the California Paint Council.

But their bid to kill the fee was challenged Thursday by a coalition--including the American Civil Liberties Union of Southern California, the NAACP Legal Defense Fund and the Children’s Advocacy Group in San Francisco--that accused the industry of trying to shirk its responsibility.

“What the paint companies are saying is that it’s OK to put poison in people’s homes,” said Mark Rosenbaum, general counsel of the regional ACLU office.

State officials say the fees have raised $12 million since they were imposed, with the paint industry paying 15% and oil companies the rest.

Dustin said the fees are viewed as unfair by manufacturers because they punish younger companies that have never marketed lead-based paints. The legal challenge says the fees should be overturned “because these are taxes . . . passed in violation of Proposition 13,” Dustin said.

Under Proposition 13, new taxes cannot be imposed unless approved by a two-thirds vote in both the state Assembly and the Senate. The lead poisoning legislation was passed by a simple majority.

Bill Abrams, an attorney with Orrick, Herrington & Sutcliffe, a San Francisco-based law firm that is part of the consumer coalition, defended the fees as “entirely proper” and not disguised taxes.

He also disputed the claim that they were unfairly imposed on new paint companies that never made lead paint. “The statute provides for and is limited to people who were historically and currently involved,” Abrams said.

The coalition announced its bid to intervene in the Sacramento suit at news conferences held around the state Thursday morning, one on the sidewalk in front of a Sinclair Paint store on Pico Boulevard in Los Angeles. Sinclair Paint is one of the plaintiffs in the industry lawsuit.

The act under dispute, signed by Gov. Pete Wilson in 1991, was intended to expand screening for lead poisoning among California children under the age of 6. It created an industry-financed lead-cleansing program overseen by the California Department of Health Services.

Health officials estimate that of the state’s 2.8 million children, about 560,000--or one in five under 6--are at risk of exposure to lead poisoning. A disproportionate number of them are Latino and African-American children who live in older neighborhoods where lead-based paint applied decades ago often peels and is eaten by the youngsters.