"Astonishingly Grotesque:" Popcorn Lung Shows Failure of Regulatory SystemOSHA to Workers: We don't need no stinkin' regulations.
More on the tragic 'popcorn lung' story. I've written quite a bit about this lung-destroying butter flavoring, the effects of which have so far resulted in a $20 million verdict for a victim in the first case to come to trial. Among the major lessons of this tragedy is that neither the current system of government regulation, nor voluntary industry actions are effectively protecting workers.
And the damage may go way beyond popcorn makers.
Investigators at the National Institute for Occupational Safety and Health say that workers who make a wide variety of products, from candy to snack cakes to potato chips, could be at risk of developing a severe lung disease associated with breathing butter flavoring vapors.The buttery popcorn flavoring, including its chief component, diacetyl, eats away at the coating of the lung's airways and is one of the worst lung toxins ever seen by this country's leading experts.
"We know that butter flavorings are very widely used," said Dr. Gregory Wagner, director of the agency's Division of Respiratory Disease Studies. "What we don't know is how much injury has occurred."
One scientist, research physiologist Jeffrey Fedan, used the words "astonishingly grotesque" to describe the toxic effect of diacetyl, a key ingredient in the flavoring.So how did government and industry respond to this when it was first discovered and what are they doing about it now? An excellent article by Sara Shipley in yesterday's St. Louis Post Dispatch takes a close look at government and industry actions (or lack thereof). The hero in this case seems to be NIOSH which aggressively investigated the workers involved and studied the effects of the chemical. But NIOSH is only a research institution, unable to enforce standard or even to investigate a workplace without the employer's consent or a request by three workers, which can present a major problems
Vincent Castranova, chief of NIOSH's pathology and physiology research branch, said that the effect of breathing butter flavoring vapors could be likened to inhaling acid.
"The airway response is the worst we've ever seen," Castranova said. And that's comparing it to a catalogue of notorious respiratory toxins such as asbestos and coal dust.
"When we say this is bad compared to what we've done before, we have a database of 20 years of exposure to different things that we compare it to," Castranova said. "In layman's terms, it ate away the coating of the airway."
Some companies, such as family-owned B.K. Heuermann Inc. in Nebraska, welcomed NIOSH. But others were less cooperative.OSHA, unlike NIOSH, was specifically created to protect workers by setting and enforcing "permissible exposure limits." So is the agency jumping into action? Not exactly.
ConAgra Foods Inc., for example, let NIOSH conduct air sampling at its popcorn plant in Hamburg, Iowa, in 2001, but the company would not allow workers to be interviewed or tested, NIOSH medical officer Dr. Richard Kanwal said.
Later, ConAgra officials refused to let NIOSH visit its plant in Marion, Ohio, even after the agency learned in 2002 that a former worker had been diagnosed with bronchiolitis obliterans. Only after three employees signed a confidential request did investigators get to the scene.
Despite the severity and speed with which the butter flavoring chemicals appear to act, no regulations have been developed to prevent workers from breathing the mixture.So the agency doesn't need no stinkin' regulations to protect workers safety? They are going to rely on the general duty clause? Which has not been used to protect a single worker from this toxin. In other words, blah, blah, blah.
The Occupational Health and Safety Administration, the federal agency that enforces workplace safety standards, has focused instead on developing voluntary guidelines.
OSHA developed a brochure in October 2002 for the Popcorn Board, a Chicago-based industry group, to distribute to its members across the country, agency officials said.
The 10-page document recommends that microwave popcorn factories require workers to wear air-purifying respirators and goggles while working with flavoring chemicals. Other recommendations include instituting annual breathing tests for employees, installing adequate room ventilation and conducting air monitoring inside the plant.
A high-level OSHA official said the agency doesn't need specific regulations on butter flavoring to protect worker safety. A general provision in the law requires employers to provide a safe workplace. Any facility that fails to carry out OSHA's recommended controls and has a worker with flavoring-related lung disease could be subject to a citation, he said.
However, OSHA has not cited any of the companies where workers fell ill.
We all know that OSHA has essentially gone out of the regulation business, that they have decided instead to rely on Alliances with industry associations. So what about the industry associations? Have they spread the good word, whipping their members into swift and effective action. Have they leapt in to fill the vast void left by OSHA's voluntary impotence? Again, not exactly.
In a statement issued last month, a spokesman for the flavoring manufacturers association said that the trade group held workshops on respiratory safety in 1997 and 2002 to educate its members.All of this exciting activity by OSHA and the flavoring association just makes me burst into song: one of my favorite pieces from My Fair Lady:
"We take each report of a potential problem with the safety of flavors in manufacturing settings very seriously," executive director Glenn Roberts said. "Fortunately, such incidents are very rare in our industry. Our goal is to understand what happened, and work with the best medical and workplace safety experts to recommend to our members and customers any additional workplace safety measures that may be needed."
Sing me no song!
Read me no rhyme!
Don't waste my time,
Please don't implore
Beg on the seats
Don't make all the speech
(More here on the activities of the Flavoring and Extract Manufacturing Association.)
So what is to be done? This case illustrates the human cost of a broken regulatory system. OSHA regulates very few chemicals and most OSHA limits were adopted by ACGIH limits set in the 1940's and 1950's based on the scientific evidence than available. The layers and layers or regulatory analysis added onto the process by the Reagan administration and the Gingrich Congress have turned a standard-making process that took from six months to a couple of years, to a labyrinth now measured in decades. (An excellent review of the broken regulatory system can be found in this 2001 testimony by AFL-CIO Health and Safety Director Peg Seminario.)
Assistant Secretary for OSHA John Henshaw stated that
"As soon as the (popcorn) issue arose, we began working with NIOSH and the popcorn manufacturers and their employees to do everything we can to ensure that the highest health and safety practices were implemented."Everything? Is that true?
First, OSHA uses the regulatory burden as an excuse not to even being the process of regulating. Fact sheets and Alliances can happen much more quickly, OSHA argues. This makes perfect sense if one ignores the obvious fact that OSHA can -- and traditionally has -- done both simultaneously.
But OSHA has another overlooked, seriously underused and almost forgotten tool in its arsenal: The Emergency Temporary Standard (ETS). If the Assistant Secretary determines that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards," OSHA can issue an Emergency Temporary Standard, which also serves as a proposed standard until the final standard is issued which must be done within six months. OSHA has rarely used this provision of the act, even in the rare case that the agency has issued an ETS, the courts have often overturned it. No successful ETS has been issued in over 25 years.
Would the courts uphold an ETS on diacetyl or the combination that makes up the buttery flavoring? Who knows? But here we have a chemical that is "very widely used," whose effects can be "likened to inhaling acid," a chemical that results in "astonishingly grotesque" effects on the lungs, "the worst" that this nation's leading experts have ever seen.
I'm no lawyer, but if I was King of OSHA, I'd say an ETS might be worth a try to avoid any more cases like former ConAgra employee Keith Campbell:
A coughing fit jerks Keith Campbell's body tight, as if he's being strangled by invisible demons. When the spasm passes, he leans his head back into his worn orange recliner and closes his eyes to let the dizziness pass.
Until two years ago, Campbell, 45, prided himself on being able to work 12-hour factory shifts and still take on odd jobs. These days, a trip to Wal-Mart leaves him exhausted. He doesn't have the strength to hold his baby grandson for long.
"They said it was safe. I thought it was safe," Campbell said wearily, occasionally hacking into a handkerchief. "It's a food plant; what could be dangerous?"
Doctors say that Campbell's lungs are crippled from breathing butter flavoring vapors at a microwave popcorn factory in nearby Marion. He worked for two years as a flavoring mixer at the ConAgra Foods plant, measuring and dumping butter-flavored powders and pastes into heated vats of soybean oil.
Company officials assured employees that the plant was safe in 2001, after outbreaks of lung disease had been reported among workers at a microwave popcorn plant in Jasper, Mo., Campbell said. ConAgra still says the plant was safe then, and continues to be so.