More Flavoring Lawsuits

Jeff Lehr at the Joplin Globe reports that a new round of lawsuits has been filed against makers of an artificial butter flavoring used at a microwave popcorn plant in Jasper County, Missouri. Exposure to artificial butter flavoring â in particular, the chemical diacetyl â has been linked to severe obstructive lung disease, and the 44 plaintiffs in the two latest lawsuits allege that exposure to butter flavoring caused severe impairment of their lungs. Lehr explains:

The lawsuits represent a second round of legal action against International Flavors and Fragrances Inc., and Bush Boake Allen, the manufacturers of the flavoring that contains diacetyl, exposure to which allegedly causes a potentially fatal lung disease known as bronchiolitis obliterans.

Forty-three workers at the plant in the 1990s either have won verdicts against IFF and BBA, or have received settlements since 2004.

Three new defendants are named in this second round of lawsuits brought by Ken McClain, an attorney from Independence, who has represented all the plaintiffs to date. The new defendants are: Givaudan Flavors, another maker of a butter flavoring used at the plant, and Aldrich Chemical Co. and Sigma-Aldrich Inc., the suppliers for IFF and BBA of acetaldehyde, a chemical ingredient in the flavoring alleged to make exposure to diacetyl even more deadly.

The new lawsuits allege fraudulent concealment and civil conspiracy on the part of all the defendants in addition to allegations of negligence and strict liability for defect in design failure to warn users that marked the first round of lawsuits against IFF and BBA.

McClain alleges that Givaudan was aware of cases of bronchiolitis obliterans among its own workers in Ohio before selling the Jasper plant any of its flavorings and that the suppliers of acetaldehyde knew, or should have known, of its potential to make diacetyl exposure even more deadly.

The Pump Handle has been following the artificial butter flavoring saga for several months (click here for past posts), and most of our coverage has focused on regulatorsâ slow response to what is clearly an urgent occupational health issue. Many of the cases of lung disease have emerged in young, otherwise healthy nonsmokers, often after just a year or two of exposure to the flavoring.

In contrast to the inadequate regulatory response, litigation on this issue has moved relatively quickly. This is often the case when it comes to health hazards, as David Michaels noted in a post about Bush administration efforts to make such litigation more difficult:

Since the beginning of the regulatory era in the 1970s, the corporations have argued that compliance with all pertinent regulations should inoculate them against litigation. To the naïve and the uninitiated, this seems fair enough; to those who know the influence the corporations exert over the writing of these same regulations and who therefore know how pathetically weak many of the regulations are, it is patent nonsense.

The problem is that law suits are an important part of our de facto system to protect public health. If the tide has turned against the entire tobacco industryâand I believe it hasâit is not due to actions by FDA or EPA, although the pioneering work of both these agencies raised public consciousness and helped reveal the workings of the tobacco industry. Rather, it is because the cigarette manufacturers have lost legal battles waged by the widows and widowers of deceased smokers, and by the states attempting to recoup the taxpayer money spent providing medical care for smoking-related diseases. As strong as it was and is, the strength of the science didnât convince Philip Morris to admit that tobacco causes lung cancer. Only after being pummeled by so much detrimental and expensive litigation has the cigarette-maker come up with a new strategy that involves telling at least partially the truth.

Likewise, the asbestos industry was tamed not by OSHA and EPA, not by a frank acknowledgment of the science, but by lawsuits brought by victims of mesothelioma, lung cancer, and asbestosis brought against Johns Manville and other producers.

Years after the first cases of flavoring-related lung disease appeared in food workers, OSHA still hasnât issued a standard protecting workers from diacetyl. But $100 million in court awards and settlements have convinced flavor manufacturers they have to address the problem.

Prospects for regulatory action have improved recently: Congress may force OSHA to issue a diacetyl standard, and in California legislators are considering a workplace diacetyl ban while the stateâs OSHA has drafted a diacetyl standard. In the meantime, maybe lawsuits will convince companies to do more to reduce workersâ butter-flavoring exposure.