By Cindy Skrzycki
Tuesday, October 9, 2007
There seems to be more than a kernel of truth in findings that a chemical in the buttery flavoring that coats microwave popcorn can cause serious lung disease.
On Sept. 24, as the House was about to mandate action, the Occupational Safety and Health Administration announced that it would begin making a rule and taking other steps to protect workers from inhaling the chemical, diacetyl.
"All of these things could have been done years ago," David Michaels, director of the George Washington University School of Public Health and Health Services' Project on Scientific Knowledge and Public Policy, said of OSHA's plan. "And they wouldn't do anything but for fear of legislation.''
The response by the agency, which has almost completely refrained from regulating during the Bush administration, suggests that Democrats in Congress may force more attention on worker safety in the closing months of the administration.
The Democrats are using oversight hearings to pressure officials at OSHA, the Consumer Product Safety Commission and the Food and Drug Administration. They have criticized the agencies' reluctance -- and in some cases, refusal -- to create and enforce health and safety rules.
The flavored-popcorn dispute includes unusual political and economic splits. The administration and the U.S. Chamber of Commerce opposed the House bill, in part because they don't want Congress writing the terms of the rule. The flavoring industry and 47 House Republicans favored the bill.
OSHA has scheduled an Oct. 17 meeting to discuss the issue but has not said when it will complete the rule.
"I would characterize us as proactive," said Jonathan Snare, acting solicitor at the Labor Department, which oversees OSHA.
Federal regulators have known since 2000 that diacetyl was suspected of increasing incidences of a disease called bronchiolitis obliterans in workers who inhaled it. The condition, now known as popcorn lung disease, causes irreversible damage to the airways.
The National Institute of Occupational Safety and Health, part of the Centers for Disease Control and Prevention, found links between the disease and the chemical. The problem seemed to intensify, industry experts said, after popcorn makers started using extra-buttery and theater-style popcorn in the 1990s, increasing workers' exposure to the chemical.
OSHA said it knows of almost 100 cases of the disease. A woman who worked at a Missouri microwave popcorn plant died last year after a long lung illness and bringing suit against a flavor manufacturer.
The agency said it doesn't know how many workers might be affected in 41 microwave popcorn plants, how many food-flavoring manufacturers use diacetyl or how many of their workers are exposed. One Missouri lawyer represents 600 workers with claims related to diacetyl.
Last month, the issue's visibility increased after a Colorado man, who ate two or more bags a day of microwave popcorn, was diagnosed with popcorn lung disease.
The FDA has said there was no evidence that "consumption of diacetyl (as opposed to inhalation) is unsafe."
The House bill, which passed 260 to 154 on Sept. 26, would require OSHA to complete an interim diacetyl standard for workers within 90 days and a broader one in two years.
The recent moves to regulate the chemical could affect popcorn sales, which total 16 billion quarts a year in the United States, according to the Popcorn Board, which represents popcorn processors.
Microwave popcorn makers such as ConAgra Foods of Omaha, the largest producer, and Weaver Popcorn of Indianapolis said in recent weeks that they will eliminate use of the flavoring.
Diacetyl accounted for a small portion of the $3.5 billion in U.S. sales the flavoring industry reported last year.
John Hallagan, general counsel for the Flavor and Extract Manufacturers Association in the District, said the group warned its members in 2004 about the dangers of inhalation, how to protect workers and how to properly label the product. He first met with OSHA officials about diacetyl last year.
In April, OSHA announced a "national emphasis program," including inspection of facilities at highest risk. Seven plants are being inspected and the rest will be by the end of the year, said Labor's Snare.
Besides opening the rulemaking, OSHA issued guidance to manufacturers, importers and employers about control measures, training and updating labels with hazard information. Others say OSHA's move is too little, too late.
Two labor unions and some House Democrats asked the agency last year to issue an emergency standard. OSHA officials "forfeited their right to suggest that they will set the time and the tempo and the urgency of the protection of these workers and their families," said Rep. George Miller (D-Calif.), who is chairman of the House committee overseeing the agency. "We are stepping in here."
Until the recent flurry in Washington, workers had turned to the legal system.
Kenneth McClain, a lawyer with Humphrey Farrington & McClain in Independence, Mo., said that since 2001 he has represented some 600 workers with diacetyl claims, winning $52.7 million in jury verdicts against flavoring makers in four cases. Undisclosed settlements were reached on 120 more, and he has another 500 cases filed, he said.
Cindy Skrzycki is a regulatory columnist at Bloomberg News. She can be reached email@example.com.