Last year, the House passed a provision of the Superfund toxic waste cleanup bill intended to help health professionals gather information about hazardous chemicals regarded by industry as trade secrets. But health workers and some consumer advocates say the provision would protect trade secrets better than doctors' "right-to-know."
Under the provision, health workers -- except during emergencies -- would sign a confidentiality agreement to use the requested chemical data for health purposes only, and could be financially liable if the pledge were violated. Consumer groups argue that the restriction would sharply curtail information-gathering.
The House provision conflicts with a less restrictive Senate version, and House-Senate conferees recently extended Superfund until June 1 while they hash out their differences. Congressional sources say this right-to-know issue, when the conferees get to it, could be controversial.
Alarmed by the deadly gas leak in December 1984 that killed more than 2,000 people in Bhopal, India, lawmakers in both chambers have pressed for measures to keep local communities -- including doctors, nurses, public health officials and researchers -- informed about the composition of chemicals emitted by industrial neighbors.
Although new federal occupational safety and health standards guarantee information access for doctors treating workers in manufacturing, health professionals dealing with the public lack access in most states. Most manufacturers have no legal obligation to reveal their chemical formulas, and many guard the information for fear of helping competitors.
The Senate bill says hazardous chemicals are not entitled to trade-secret protection, clearing the way for easy access by medical workers.
The House bill attempts to accommodate concerns of chemical companies and health specialists. During medical emergencies, the bill would require manufacturers to report the composition of any hazardous substance. At other times, the health professional would have to sign an "agreement of confidentiality" pledging to use such information for "health needs" only.
The agreement also "may provide for appropriate legal remedies" in the event of a violation. Under the House bill, the health worker could be asked to agree to a "reasonable pre-estimate of damages" for which he could be liable if he leaked the trade secret to another chemical firm.
Chemical industry officials assert that such an agreement would balance their right to protect trade secrets against the medical community's right to know the specific formula of a toxic substance.
"If I won't give my trade secret to Dow Chemical, why should I give it to a doctor if he's going to give it to Dow?" asked Neil King, a lawyer for the Chemical Manufacturers Association, "If he gives my trade secrets to a competitor, it's as if he's taking my property and throwing it into the garbage can."
But medical groups and some consumer activists say the House measure would have a "chilling effect" on the health professionals' ability to gather information they deem vital to treating patients.
Nancy Drabble, a lobbyist for the consumer group Public Citizen, said in a letter to Superfund conferees that health workers have no way to determine the reasonableness of monetary damages. They "will understandably be unwilling to literally lay their house or savings on the line to gain access to this information," she said.
Dr. Alan Engelberg, director of public health policy for the American Medical Association, said private physicians would "think twice" before assuming such liability. "As a private doc, I'd be a little nervous," he said.
Engelberg also questioned whether the confidentiality requirement would prevent doctors from publishing their cases or from consulting specialists about a patient exposed to a hazardous chemical.
George Degnon, executive director of the Association of State and Territorial Officials, said the monetary damages clause is an unreasonable demand that could delay the delivery of health services. Since most government health officials lack authority to assume liability for monetary damages, he said, they often would have to go through the long process of getting approval from the state attorney general.