'Popcorn lung' suits target N.J. companies
Sunday, July 27, 2008
BY ROBERT COHEN
STAR-LEDGER WASHINGTON BUREAU
http://www.nj.com/starledger/stories/index.ssf?/base/business-10/1217133...

WASHINGTON -- After working less than a year at a St. Louis company mixing butter flavoring for food products, Jerry Blaylock says he became short of breath, was up most nights coughing, and eventually needed oxygen 24 hours a day.

"I lost 58 percent of my breathing capacity. I can't take a walk without stopping to rest," the 59-year old Illinois resident said during an interview. "I can't work, I'm on total disability, and I can't really go out and do anything with my grandkids."

Blaylock is one of hundreds of workers in the food flavoring and processing industries who have been diagnosed with a life threatening respiratory ailment -- officially known as bronchiolitis obliterans and commonly called popcorn lung disease -- that has been linked to airborne exposure to the chemical diacetyl.

This ingredient has been widely used to create a buttery taste and smell in candy, pastries, frozen foods and microwave popcorn, although most major popcorn makers recently have turned to other options.

Today, numerous companies, including several New Jersey firms that either produced the chemical, distributed it or used it to mix and create the butter flavorings for foods, are facing more than 500 lawsuits from factory workers like Blaylock in Missouri, Ohio, Indiana, Iowa and Illinois.

The lawsuits have riled the flavor and fragrance industry, creating a potential liability of hundreds of millions of dollars for failing to warn workers about the dangers of diacetyl and to provide adequate safety protections.

Among the New Jersey companies that made or distributed the diacetyl and are defendants in lawsuits are Polarome International, a Jersey City-based supplier of oils and aroma chemicals and one of the parties in the Blaylock case; Elan Chemical of Newark; and Berje of Bloomfield.

International Flavors and Fragrance, which has facilities in Hazlet, South Brunswick and Union Beach, created butter flavors using the chemical ingredient and is a party to a number of pending cases. So far, IFF and its subsidiary, Bush Boake Allen, have been involved in four verdicts or settlements resulting in damage awards totaling $42.7 million.

WHO IS TO BLAME?
The chemical and flavoring firms argue the butter flavor chemical is safe when handled properly, and their customers were warned the flavoring should be mixed in a well-ventilated area and that workers should wear respirators when heating it.

Attorneys for the injured workers insist the warning and precautions were inadequate or nonexistent.

"This is the result of years of no government oversight, and allowing the industry to regulate itself," said Missouri attorney Kenneth McLain, one of the law firms representing Blaylock and hundreds of the workers who have filed suit.

"These firms treated chemical products like they are food, and provided the workers with no or minimal protections," he said.

In court papers in the Blaylock case, physician and occupational health expert David Egilman contended that "Polarome did not conduct any tests on the health hazards of the product they sold," but knew about potential dangers and failed to convey that information to the users.

Executives from Polarome did return telephone calls seeking comment. But their attorneys said in court papers the chemical was not unreasonably dangerous, and they faulted Blaylock for not following written warnings or taking precautions to protect himself.

The lung condition experienced by Blaylock first came to public attention with the 2000 discovery of a cluster of sick workers at a microwave popcorn factory in Jasper, Mo.

'MOST DRAMATIC CASES'
By 2003, the National Institute of Occupational Safety and Health had conducted an investigation, linked exposure to vapors from butter flavoring to the lung disease, and sent warnings to some 4,000 companies nationwide.

As part of its testing, NIOSH exposed lab rats to airborne concentrations of the chemical for a single six-hour period, and found what the lead investigator called "the most dramatic cases of cell death I've ever seen."

A test with similar results had been done by a German company in 1993 and was subsequently known to some chemical firms, but kept secret from the public for many years, according to Egilman.

Only one consumer, a Denver man who ate microwave popcorn daily for many years, has been found so far to have developed the lung disease from breathing fumes. There is no information to suggest any risk from eating butter-flavored microwave popcorn.

John Hallagan, head of the Flavor and Extract Manufacturers Association, the industry trade group, said the issue has been "emotionally wrenching for the entire industry because we are talking about people's health and safety, and our own workers."

Hallagan said his association has urged members to reduce use of diacetyl content in their flavors and has held workshops including some in New Jersey to train flavor manufacturers on safety issues.

"This is first time we had this sort of focused emphasis on respiratory health and safety in this way," he said." We have not denied there is a problem. No one understands exactly what is going on, but we didn't need certainty to take strong action."

David Michaels, an occupational health expert at George Washington University, said the industry trade group has taken some positive steps but cautioned its program is voluntary, and that "the only incentive to do the right thing has been fear of litigation."

NO ACTION YET
Michaels said that despite the NIOSH findings and other evidence, both the Occupational Safety and Health Administration, which sets workplace standards, and the Food and Drug Administration, which has approved the controversial chemical ingredient as a safe food product, have not taken action.

"This is a case where the government has abdicated its responsibilities to protect workers and consumers," Michaels said. "It reflects the Bush administration's deep-seated opposition to any sort of regulations.

In June 2007, the FDA rejected a request from Rep. Rosa DeLauro (D-Conn.) to bar use of the chemical diacetyl as a flavoring agent until further tests were completed. The agency said it was monitoring the scientific literature, but rejected the request because it "does not have evidence that would cause it to take immediate action with respect to diacetyl."

Last fall, OSHA issued a safety bulletin regarding "respiratory disease among employees in microwave popcorn processing plants," and began an inquiry to determine whether it should regulate the controversial flavoring agent. To date, OSHA has not issued any new safety regulations.

Robert Cohen may be reached at rcohen@starledger.com