Science and Law
23rd April 2013

Chemical Hazard Lawsuits – Science Monitoring Is Key

Based on the abundant media coverage of workplace chemical exposures, we’re bracing for potential lawsuits in this area.

Chemical Hazard Lawsuits – Science Monitoring Is Key

Based on the abundant media coverage of workplace chemical exposures, we’re bracing for potential lawsuits in this area.

© Valkhromov | Stock Free Images

A recent article in The New York Times condemns the Occupational Safety and Health Administration (OSHA) for focusing on immediate threats rather than targeting “the silent, slow killers that, in the end, take far more lives.” The article contends that the widespread use of the chemical n-propyl bromide (nPB), which has been blamed for neurological damage and infertility, reflects OSHA’s shortcomings. In the past 40 years, OSHA has established new regulations for 16 of the most deadly workplace substances, such as lead, asbestos and arsenic, but has failed to address tens of thousands of others, the article claims. Meanwhile OSHA has written two dozen pages of regulations for ladders and stairs.

Indeed, government regulation of chemicals (or apparent lack thereof) appears to be a hot topic in the media. The New York Times recently published a short editorial piece describing concern over the current state of the Toxic Substances Control Act, also known as TSCA. According to the editorial, there is inadequate regulation of chemicals in our consumer products, and the list of chemicals that are affirmatively banned is exceedingly small. Nevertheless, the article fails to describe the number of controversies that have erupted and turned out to be “tempests in teapots.” At the end of the day, concern over an alleged toxic chemical does not translate into a true threat to consumers. The only way that companies can protect themselves from frivolous lawsuits making unsubstantiated allegations is to do their homework and effectively monitor the science related to their products.

 

As we noted in our March 4 blog post, OSHA is attempting to strengthen workplace regulations by revising its Hazard Communication (HazCom) Standard to improve the quality of information conveyed to employees via labels and data safety sheets. The HazCom standard is intended to protect employees from the potential dangers associated with hazardous materials. However, it can also protect product manufacturers from litigation if they remain in compliance. In the post, we recommended a three-pronged approach to ensuring compliance: (1) effective monitoring of the science related to the products; (2) proper analysis of the available science; (3) effective use of experts and consultants.

This approach, along with strict regulatory compliance, can also benefit companies that use potentially hazardous products in the workplace.

A recent article in Forbes demonstrates how a rigorous scientific study can have a dramatic impact on a product’s status. According to the article, a team of scientists at (of all places!) the Food and Drug Administration (FDA) is conducting groundbreaking research on the pharmacokinetics (PK) of bisphenol A (BPA), which has been demonized by environmental activists for years. The researchers administered BPA to pregnant mice, rats and monkeys, and found the mother’s metabolism, the placenta, and the fetus “systematically and efficiently deactivate BPA.” The research has been well-received by environmental scientists and is beginning to turn the tide in the BPA controversy.

The impact of the FDA’s study on the BPA controversy indicates the importance of monitoring and properly analyzing the available science on chemical exposures.

In addition to workplace chemicals, another area we’re tracking is the nascent hydraulic fracturing industry. Hydraulic fracturing (often referred to as “fracking”) has recently come under fire in the media for its alleged connection to lung disease in workers. A recent NPR article maintained that the silica sand used in fracking can cause silicosis and cancer in fracking workers who inhale it.

A company facing a lawsuit based on its involvement in fracking may be discouraged by the flurry of negative publicity surrounding the process. However, defense attorneys are aware that misinformation on fracking abounds and claims of adverse health effects lack any scientific evidence. (Check out one of our previous blog postings for some great hydraulic fracturing resources.) Thus a systematic and comprehensive analysis of the science can significantly bolster the company’s position.

The most effective way to combat deceptive claims about consumer and workplace exposure is a rigorous assessment of the related science.

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