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CASE UPDATE: Expected to Go to Trial on a Diacetyl Case in May
February 2019 - Attorneys Jacob Plattenberger and Tyler Schneider, along with paralegal Jill Berndl, are scheduled to go to trial on a diacetyl case in May. The case, which involves a former flavor factory worker, will take place in Los Angeles, California and is expected to last approximately four weeks. This will be the second California trial involving diacetyl for TorHoerman Law. The last trial, which was in Orange County, California, resulted in the jury awarding the plaintiff a $2.6 million verdict against Citrus and Allied Essences Ltd., the company that supplied the diacetyl.
Diacetyl is a highly toxic chemical compound that is very dangerous to not only people who work with it but also to consumers. Diacetyl exposure can cause permanent, severe, and potentially lethal lung disease in workers and consumers. Despite this, many people continue to work with diacetyl and are not told of the steps they need to take to protect themselves. Also, consumers could be breathing diacetyl vapors and risking their health by using products containing diacetyl.
Diacetyl vapors enter the lungs, setting off an autoimmune chain reaction in the lung tissue of the small airways. If you picture your windpipe as a tree trunk the small airways, or bronchioles, are the smallest end of the smallest branches, furthest away from the trunk. This is where oxygen goes into your bloodstream, and CO2 comes out. The tissue in the bronchioles becomes fibrotic, essentially turning to scar tissue. The tissue stops working as it should, and less and less oxygen is able to get from the lungs into the bloodstream where the body can use it. Once this scarring process has happened it is irreversible – the tissue never returns to normal.
This disease, bronchiolitis obliterans, is commonly referred to in the media as “Popcorn Lung” because it was first widely reported in workers making microwave popcorn. However, bronchiolitis obliterans has been found in people working in coffee roasting plants, animal feed plants, bakeries, candy factories, flavoring manufacturing plants, and in everyday consumers. In the medical community, the disease can be referred to as bronchiolitis obliterans, obliterative bronchiolitis, diacetyl-induced bronchiolitis obliterans, or popcorn lung.
Most people do not know that they are exposing themselves to diacetyl. Because it is often times actively hidden by the industry, consumers are deprived of the ability to make an informed decision about the products they are using, and our health and the health of workers is left to profit-motivated corporations. And, these flavorings are BIG business.
Diacetyl is both a man-made chemical compound and something that occurs naturally in certain foods or food processes. Diacetyl is used to mimic the taste, texture, and smell of butter. In the flavoring industry, it is used as an ingredient, or component part, of usually complex flavoring “recipes” used to artificially flavor foods, beverages, and so-called vaping juice or e-juice. Any processed flavoring that has a buttery-note, or buttery taste, as part of its flavor profile likely contains diacetyl. Even if that product is labeled as being “naturally flavored” it could still contain diacetyl.
Even though the human health risk of diacetyl has been known for decades there is no current requirement that a company indicates on a box or label, when a product contains diacetyl.
“Generally Recognized as Safe” Refers to Ingestion Only.
While the FDA does classify diacetyl as “GRAS” or “Generally Recognized As Safe” it is important to understand that this classification refers only to the question of the safety of ingestion. The FDA is merely answering the question “is something safe to eat”? This is a very different question than “is it safe to inhale”?
Further, it is important to understand that the “GRAS” system was developed by the main flavoring industry trade group, the Flavor & Extracts Manufacturers Association. The Flavor & Extracts Manufacturers Association serves as an advocate for the flavor manufacturers and suppliers and it is completely self-policed.
According to FEMA’s website,
The FEMA Expert Panel only evaluates substances for GRAS status that are used to formulate flavors to be added to human foods. The Expert Panel does not evaluate food ingredients with functions other than flavoring nor does it evaluate flavorings for use in products other than human food. For example, the Expert Panel does not evaluate flavor ingredients for use in tobacco products, e-cigarettes, or other products that involve routes of exposure other than ingestion.
Lawyers, private groups, state government, and health agencies, as well as other medical professionals, have tried for years to raise public awareness of the dangers of this chemical.
Early signs of the disease can be eye irritation; shortness of breath that is new; fatigue; crackling in the lungs; and difficulty sleeping. In its early stages, symptoms may decrease during weekends or other breaks from exposure.
Lung disease can be hard to diagnose even for experienced pulmonologists. And, even doctors experienced in treating occupational diseases can miss bronchiolitis obliterans. If you believe you have been exposed to diacetyl in your workplace, or at home, be sure to let your doctor know so that your lung function can be tested. Early detection is critical.
The following diagnoses show similar symptoms, and diacetyl-induced lung disease is often misdiagnosed as one of the following diseases:
TorHoerman Law has been representing people all over the country suffering from diacetyl-induced lung disease for several years. Please contact Attorney Jacob W. Plattenberger with any questions you may have.
TorHoerman Law is currently accepting cases for individuals who have developed Popcorn Lung as a result of being exposed to Diacetyl. If you have developed Popcorn Lung and believe that you may have been exposed to Diacetyl, contact the offices of TorHoerman Law today. Our firm offers free no-obligation consultations to determine whether you qualify to participate in the Popcorn Lung lawsuit.
August 2018 - THL has over 50 active cases in Chicago, St. Louis, Los Angeles, and Warren County, Ohio. We are currently investigating hundreds of more potential claims. The trial team is currently preparing to go to trial in Los Angeles in January 2019. We continue to be surprised by the volume of calls that we are getting on a weekly basis - there are still many workers across the county who are being negligently exposed to this deadly chemical.
April 20, 2018 - Our office is currently litigating these cases across the country with lawsuits filed in California, Missouri, Illinois, and Ohio. We anticipate that by the end of 2018, this number will only grow as we meet more individuals who have been injured by this dangerous product. While these cases are all at varying stages, we anticipate at least some to be in trial soon.
April 12, 2016 - The CDC's first test results from Just Coffee, a midsize coffee roasting facility in Madison, Wisconsin, found extremely high levels of two lung-destroying chemicals in the bins where roasted beans are stored: diacetyl and 2,3-pentanedione. Diacetyl has been connected to the deadly lung disease bronchiolitis obliterans, (popcorn lung), and 2,3-pentanedione has shown toxicity in studies involving animals.
The tests at Just Coffee were the agency's first study of a coffee facility that does not use added flavors, and the results emphasize the risk faced by all coffee workers, not just those in facilities where artificial flavors are used.
February 22, 2015 - A California state jury awarded a 38-year-old father $2.6 million after being diagnosed with bronchiolitis obliterans as a result of ten years of unknown workplace exposure to diacetyl. At the time of the trial, the man had only 40% lung function and will likely need a lung transplant to save his life.
April 23, 2013 - A federal court in Colorado has dismissed the defendant's post-trial motions for judgement as a matter of law for a new trial thus upholding a $7.5 million jury award to plaintiff, Wayne Watson, who sued the manufacturer and retailers of microwave buttered popcorn that caused him to develop "popcorn lung" after eating two bags daily for 10 years. Wayne Watson v. Gilster-Mary Lee Corporation was the first consumer of microwave popcorn diagnosed with Popcorn Lung.
Dr. Cecile Rose, a lung specialist at the National Jewish Medical Research Center in Denver (and Wayne Watson's doctor) told the CBS Early Show in 2007 that initially she was unsure what could have caused his ailment, but, knew it came from something he had inhaled. When Watson's medical history turned up nothing but eating two bags of popcorn for ten years, Dr. Cecile Rose took action to see that others knew of the dangers. Dr. Rose wrote a letter to federal agencies warning that an unidentified person may have developed the first case of the disease outside factory workers.
Even with warnings from Dr. Rose, the National Institute for Occupational Safety and Health and other groups, many people are working with this substance and consumers are risking their health using products containing diacetyl in their homes on a daily basis.
According to the Colorado federal court, punitive damages were appropriate in this case because "a reasonable jury could conclude that the Defendants knew about the risk posed to consumers from diacetyl in their microwave popcorn products and that this conduct could be construed as willful and wanton."
August 22, 2012 - Sometimes change isn’t always for the better. When the first exposed risks to diacetyl, a chemical used in butter flavoring, was linked to lung damage in workers at microwave popcorn factories, several manufacturers decided to start using a different ingredient: 2,3-pentanedione ("PD"). However, recent studies have found PD to be just as toxic.
The study, which was published in The American Journal of Pathology, indicates that acute PD exposure has respiratory toxicity which is comparable to diacetyl in laboratory animals. In the study, lab rats were exposed to one of three subgroups for six hours: PD, diacetyl, or filtered air. The rats exposed to PD had airway lining damage in the upper nose comparable to the harm caused by in the diacetyl.
This type of damage is believed to be the primary cause of bronchiolitis obliterans, or what has become known as "popcorn worker’s lung."
Yet, the evidence of PD's toxicity didn't end with possible airway lining damage. The researchers also found that PD seemed to alter gene expression in the rats. Exposure to PD activated caspase 3, a protein known to play a role in cell death, in axons of olfactory nerve bundles which are instrumental for our sense of smell. Furthermore, PD exposure was linked to decreased expression of a protein involved in restoring oxygen to tissues in the brain.
August 2012 - A study of beta-amyloid protein clumps in the brain indicated an increased risk of developing Alzheimer's disease with real-world occupational exposure to diacetyl.
January 18, 2011 - OSHA revised its National Emphasis Program (NEP) on Microwave Popcorn Processing Plants. The purpose of the revised NEP is to minimize or eliminate worker exposure to the hazards associated with microwave popcorn manufacturing. Specifically, the Direction revises the previous Microwave Popcorn initiative by OSHA to reduce or eliminate exposure to other related diacetyl substitutes.
"It is alarming that workers continue to be at risk of dying from exposure to diacetyl and diacetyl substitutes," said Assistant Secretary of Labor for OSHA, Dr. David Michaels. "Illnesses and death from these chemicals are preventable and this revised directive will help ensure that employers use necessary measures to protect workers from this hazard."
December 2010 - California became the first state in the nation to implement a standard for working with the chemical food additive, diacetyl. The standard, General Industry Safety Orders §5197, would apply to all flavor and food manufacturing facilities that use diacetyl and flavorings that contain 1% or greater concentration of the chemical.
The standard also calls for quality control measures, ventilation standards, require proper personal ventilators to be worn by workers. Also, the standard calls for mandatory reporting requirements by companies to state authorities if one of their employees gets sick.
California continues to lead the states and the federal government on this issue. The federal government has consistently declined to regulate diacetyl and the FDA will not change its current GRAS ("generally recognized as safe") designation. California should be commended for its actions regarding diacetyl.
October 14, 2010 - OSHA issued a Safety and Health Bulletin (SHIB) addressed to employers and workers involved in the manufacture of "flavorings." According to OSHA, it is important to understand that although a flavoring is considered safe to eat, it does not mean that the flavoring is also safe to breathe or handle in occupational settings.
The occurrence of severe lung disease amongst workers in workplaces where diacetyl is manufactured and used has led some manufacturers to reduce or eliminate the amount of diacetyl in some kinds of flavorings, foods, and beverages. However, there is growing concern that these diacetyl substitutes also pose health risks for workers and certain combinations of the chemical may actually increase the harm.
The principal types of flavorings that use diacetyl are:
The principal industries that use these flavorings include, but are not limited to:
August 27, 2010 - A Chicago jury awarded $30 million to a chemical-flavoring plant worker disabled by exposure to diacetyl.
2010 - Diacetyl and other flavoring chemicals have been linked to nearly 200 cases of lung disease among factory workers who make or use the chemicals. It has killed at least three (Baltimore Sun, 2006).
More than $100 million has been awarded in jury verdicts and paid in settlements in cases brought by former popcorn plant workers against companies supplying or making the butter flavoring (Baltimore Sun, 2006).
December 23, 2009 - In a letter from NIOSH Director John Howard to OSHA Chief David Michaels in which Director Howard reports that the "new, safer, butter substitutes" used in popcorn and other foods are, in some cases, at least as toxic as what they replaced. John Hallagan, general counsel for the Flavor and Extract Manufacturers Association, said his organization has told anyone who would listen that diacetyl substitutes are actually just another form of diacetyl.
March 13, 2008 - Tests on mice show that diacetyl, a component of artificial butter flavoring, can cause a condition known as lymphocytic bronchiolitis, said the team at the National Institute of Environmental Health Sciences, part of the National Institutes of Health.
The condition can lead to obliterative bronchiolitis — or "popcorn lung" — a rare and debilitating disease seen in workers at microwave popcorn packaging plants and at least one consumer.
September 4, 2007 - Dr. Cecile Rose, a pulmonary specialist at Denver's National Jewish Medical and Research Center, in a letter, warned federal agencies or regulators that consumers, not just factory workers, are in danger of contracting bronchiolitis obliterans from fumes produced by microwaving popcorn-containing diacetyl.
Additionally, FEMA recommended reducing diacetyl in butter flavorings
2006 - A lawsuit filed in February, charged that the Flavor and Extract Manufacturing Association "conspired with the other defendants to fraudulently conceal the true facts regarding the health consequences of the butter flavoring…" (Baltimore Sun, 2006).
In July 2006, The International Brotherhood of Teamsters and the United Food and Commercial Workers petitioned the U.S. Occupational Safety and Health Administration to promulgate an emergency temporary standard to protect workers from the deleterious health effects of inhaling diacetyl vapors.
2005 - California OSHA officials let flavorings an industry-paid consultant investigate workers' health in the flavorings plants (Baltimore Sun, 2006).
2004 - The Flavor and Extract Manufacturing issued its report on precautions in use of flavorings and California OSHA officials sought NIOSH’s help after a Los Angeles worker was diagnosed with bronchiolitis obliterans.
2002 - NIOSH presented its 2000 findings to OSHA, state health departments, and the flavoring industry. The findings were also published in the New England Journal of Medicine. OSHA’s scientists begin studying diacetyl, urging their leaders to take broader action. Flavor and Extract Manufacturing Association downplayed diacetyl hazard in comments to NIOSH (Baltimore Sun, 2006)
2001 - A German chemical company shared animal study results conducted in 1993 that showed that rats subjected to diacetyl suffered significant lung injury and many died (Baltimore Sun, 2006).
2000 - The outbreak of lung disease is identified in the Jasper, Mo. popcorn factory while other outbreaks were identified in Iowa, Illinois, Nebraska, and Indiana (Baltimore Sun, 2006).
The Missouri Department of Health asks NIOSH to determine if these cases of lung disease were due to an exposure at the plant in Missouri. NIOSH found that workers at the Glister-Mary Lee popcorn plant in Jasper, Mo. who spent more time in areas with higher air concentrations of diacetyl were more likely to have abnormal airflow in their breathing tests. Workers reported a cough and shortness of breath 2.6 times as often as would be expected based on US population health data. Higher exposures over time were associated with lower airflow
NIOSH made recommendations for improvements to the ventilation of the Missouri plant, which the company followed. (NIOSH Fact Sheet, 2002).
1992-2000 - Eight workers of the Glister-Mary Lee popcorn plant in Jasper, Missouri, developed a lung disease called bronchiolitis obliterans, a rare disease in which lung tissue is permanently destroyed (NIOSH Fact Sheet, 2002).
1985 - NIOSH investigated the occurrence of cases resembling bronchiolitis obliterans in workers of a company that mixed liquid flavorings with cornstarch for the baking industry (Kanwal, Richard, MD MPH).
Consultants for the Flavor and Extract Manufacturing Association produced a
data sheet that said that breathing diacetyl is harmful to the respiratory tract and is "capable of producing system toxicity" (Baltimore Sun, 2006).
1977 - Study showed that diacetyl applied to the skin of rabbits resulted in lung destruction (Baltimore Sun, 2006)
Fox, Maggie. “Popcorn Ingredient Causes Lung Disease: U.S. Study.” Edited by Will Dunham and John O'Callaghan, Reuters, Thomson Reuters, 13 Mar. 2008, www.reuters.com/article/us-lungs-popcorn/popcorn-ingredient-causes-lung-disease-u-s-study-idUSN1330524220080313.
“OSHA Direction: National Emphasis Program – Microwave Popcorn Processing Plants.” Occupational Safety and Health Administration, U.S. Department of Labor, 2011, www.osha.gov/OshDoc/Directive_pdf/CPL_03_DIR_11-01.pdf.
“UNITED STATES DEPARTMENT OF LABOR.” Occupational Safety and Health Administration, Nov. 2012, www.osha.gov/SLTC/flavoringlung/diacetyl_worker_alert.html.
"UNITED STATES DEPARTMENT OF LABOR." Occupational Safety and Health Administration, United States Department of Labor, 14 Oct. 2010, www.osha.gov/dts/shib/shib10142010.html.
Last Modified: March 20th, 2019 @ 09:59 am
Diacetyl is a dangerous substance used in many food products and it is rarely indicated as an ingredient. Exposure to diacetyl has been known to leave workers and consumers with lethal lung disease. If you believe that you have been exposed to diacetyl, contact us today for a free consultation on your legal claim.
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