Popcorn Lawsuits and a Weak Regulatory System

The Seattle Post-Intelligencerâs Andrew Schneider reports on another lawsuit from a consumer who says his lungs have been damaged by years of microwave popcorn consumption. The most famous microwave-popcorn consumer, Wayne Watson of Denver, filed suit earlier this year. Watson drew national attention after he was diagnosed with bronchiolitis obliterans, a disease previously found only in workers from plants that used the butter-flavoring chemical diacetyl. (The Pump Handle was the first to publicize the fact that a popcorn consumer had been diagnosed with the disease; check our diacetyl page for more.)

Schneider reports that Spokane businessman Larry Newkirk was in the habit of eating four to six bags of microwave popcorn each day; Newkirkâs lawyer points out that the problem wasnât from the popcorn itself, but from the butter-flavored vapors released when a hot bag is opened. The companies named in the suit include ConAgra (whose spokesperson emphasized that the company has phased diacetyl out of its microwave popcorn); Shopko Stores, where Newkirk bought ConAgraâs Act II popcorn; and companies that manufacture or have manufactured flavorings containing diacetyl.

Thereâs some debate â certainly among Schneiderâs readers, and probably from lots of people reading about this case â about who should be sued. Thereâs also a question of which government agency should have stepped in before so much lung damage occurred. This case demonstrates that our regulatory system is too weak and poorly integrated to respond to such threats effectively.

The first case of bronchiolitis obliterans in a popcorn worker was diagnosed in 1999, and the physician notified the Occupational Safety and Health Administration. The National Institute for Occupational Safety and Health investigated, identified diacetyl as the likely source of the problem, and recommended measures to reduce workersâ diacetyl exposure, but they lacked the authority to require any action from employers. Despite pleas from sick workers and worker advocates over the next several years, OSHA, which did have authority, failed to take any meaningful action to protect workers from this hazard. It wasnât until Congress started making moves to require action from OSHA that the agency finally announced it would do something about diacetyl â but it turned out to be a case of too little, too late.

We would hope that, since microwave popcorn is a food product, the Food and Drug Administration would do something about it â but FDA has repeatedly refused to act on requests that they examine whether breathing diacetyl poses a risk to consumers.

Thereâs also the argument that since the problem is the diacetyl fumes, not eating diacetyl, that this is an air quality issue and thus under the purview of the Environmental Protection Agency. It appears that some EPA scientists had the same thought, because in 2003, an agency newsletter announced that a study was underway on the chemicals released from popping bags of microwave popcorn. The agency refused requests to share the studyâs results before publication, despite the health implications and numerous delays in getting it published. The results were finally published in late 2007, and were much as expected: the chemicals present were similar to those used in popcorn factories, and emissions were strongest when the bag was open. This doesnât tell us anything about the health effects, but it does verify that popping microwave popcorn releases fumes that contain diacetyl and other substances. 

Details about these agency (in)actions are available from our diacetyl case study and timeline at www.DefendingScience.org.

Schneider reports that Larry Newkirk stopped eating microwave popcorn in September 2007 after hearing about the link between diacetyl and lung disease, but he had a hard time getting his doctors to take him seriously. Finally, he saw Dr. Allen Parmet, who diagnosed and reported the first cases among popcorn workers, and learned that he had bronchiolitis obliterans. Schneider notes on his blog that most of the doctors who have diagnosed the disease believe there are many more existing cases that are being misdiagnosed.

The good news is that major microwave-popcorn manufacturers have removed diacetyl from their products, so future exposures will be reduced. Diacetyl is used in many other foods, too, though, and itâs not clear that those uses will also be discontinued. And the problems with our regulatory system remain: federal agencies arenât always eager to address newly identified hazards, especially when it could plausibly be called someone elseâs problem.