Is OSHA Trying to Snooker Congress?

By David Michaels

Days before the House will vote on legislation to force OSHA to regulate diacetyl (the artificial butter flavor chemical that causes bronchiolitis obliterans), the agency has apparently decided that perhaps it is finally time to begin the rulemaking process for this substance. Yesterday, fourteen months after we petitioned OSHA for an emergency standard, the agency has called for a stakeholder meeting to discuss how it might address the problem.

Although OSHAâs press release claims that the agency is âinitiating rule-making,â if you read the small print, it is clear that OSHA is simply saying it will start collecting information. Given its timing, it is apparent that this is an attempt to preempt legislation that would compel OSHA to issue a standard protecting workers. There is no commitment to anything beyond a single meeting.

We welcome OSHAâs effort to collect information; after all, a group of public health and union activists met with OSHA staff last December and told them to do exactly this.

But Members of Congress should not be fooled.

It has taken OSHA more than 5 years since NIOSH told the world about âpopcorn workers lungâ before the agency announces it will begin to think about regulation. H.R. 2693, The Popcorn Workers Lung Disease Prevention Act, would give OSHA 90 days to issue an interim standard and two years to complete the process. Workers exposed to deadly chemicals canât wait another five years. Itâs time for Congress to force OSHA to do whatâs right, because the agency can't seem to get there on its own.

Letâs review some of the events that led OSHA to finally express some interest in beginning the rule-making process.

Evidently, the right time for OSHA to begin to collect information about artificial butter flavor chemicals wasnât in 2002, when the National Institute for Occupational Safety and Health warned the world that microwave popcorn workers were developing bronchiolitis obliterans caused by breathing artificial butter flavor vapors. It evidently wasnât even the right time in 2006, after numerous additional studies linking diacetyl and lung disease had been published, and when two unions and a group of scientists petitioned OSHA to issue an emergency temporary standard for diacetyl.

OSHA didnât seem to feel the need to do anything meaningful while reports of sick workers were coming in (first from manufacturers of popcorn and other snack foods, then from flavoring manufacturers, too), or while the animal studies linking diacetyl exposure to lung disease were accruing. Even when we specifically petitioned to issue an emergency standard, the agency didnât exactly jump on the opportunity.

Then, in April of 2007, a front-page New York Times article and two Congressional subcommittee hearings highlighted OSHAâs failure to regulate diacetyl, and the agency finally decided to do something. OSHA announced that it would be launching a National Emphasis Program on butter-flavoring hazards in the microwave popcorn industry. The program is inadequate â it only deals with popcorn facilities (instead of all food and flavoring facilities where diacetyl is used) and doesnât include diacetyl standards that workplaces will be required to meet â but it at least showed that OSHA had grasped the need for some kind of action.

Members of Congress obviously understand that more than an emphasis program is necessary; in June, Representative Lynn Woolsey introduced HR 2693, which would require OSHA to set an interim and final standard. Now that the bill is about to come up for a vote, OSHA announces that it plans to undertake the rulemaking.

You can see why we are feeling a little suspicious about the timing of yesterdayâs announcement. What events could have lead to OSHA's change of heart?

It is possible that additional research and news about diacetyl have finally convinced OSHA that itâs time regulate the substance â after all, a group of us wrote to Secretary of Labor Elaine Chao earlier this month to highlight the report of an apparent case of bronchiolitis obliterans in a popcorn consumer and new published research about respiratory illness in workers exposed to diacetyl.

It is also possible that OSHA recognizes that legislation regarding a diacetyl standard is likely to pass and has decided to do the required ground work now.

But given OSHAâs track record, it is more likely that the agency is hoping to convince some legislators that since OSHA will be undertaking diacetyl rulemaking anyway, they should vote against the Popcorn Workers Lung Disease Prevention Act. (Edwin Foulke, Assistant Secretary for Occupational Safety and Health, has expressed his opposition to HR 2693 in the form of a letter to the House Education and Labor Committee Chair George Miller.)

Legislators should not allow this announcement to affect their vote on HR 2693; they should support the Popcorn Workers Lung Disease Prevention Act because itâs the best way â probably the only way â to get food and flavoring workers protected in a timely fashion.

David Michaels heads the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services.