Hazardous Snacks

Wayne Watson loved extra-buttery microwave popcorn. In fact you might say the 53-year-old furniture salesman was a popcorn addict. For more than 10 years he microwaved two or three packages a day at work and in his Colorado home, often breaking open the bags to inhale the fragrance before diving in.

When Watson developed symptoms of a lung condition, the first doctor he consulted was puzzled. Watson didn't smoke and had not been exposed to excessive amounts of mold or bird droppings--all of which can cause lung inflammation.

In February, as Watson's cough and shortness of breath worsened, he sought help from Dr. Cecile Rose, acting head of the division of environmental and occupational health sciences at the National Jewish Medical and Research Center in Denver. Rose, who studied lung illnesses in factory workers as a consultant to flavoring and popcorn manufacturers, noticed a similarity between Watson's symptoms and those of the workers. When Watson acknowledged his popcorn-eating habit and tests revealed lung airway damage, she diagnosed him with bronchiolitis obliterans, also known as "popcorn lung."

Rose sent a letter in July to the FDA, EPA, OSHA and CDC warning of a potential consumer health risk from inhaling the fumes of butter-flavored microwave popcorn. Rose's letter, which came to light Sept. 4 when it was posted on a public health policy blog, is just the litigation lever for which the plaintiffs' bar had been waiting.

Although manufacturers have paid out hundreds of millions of dollars to lung-damaged popcorn plant workers, no one had found a link to consumers until Watson's case surfaced. Now Humphrey, Farrington & McClain, a Missouri-based plaintiffs' firm that represented many of the popcorn and flavoring plant workers, plans to file on Watson's behalf in Colorado what is expected to be the first consumer popcorn lung litigation.

"This is a situation where the plaintiffs' attorneys have been waiting for the science to catch up with their theory," says Richard Fama, a member in Cozen O'Connor who has represented manufacturers in workers' popcorn lung lawsuits. "Now the evidence seems to be mounting that will support their theory."

Making the Connection
The most recent evidence includes publication in May of a study linking bronchiolitis obliterans to occupational exposure to diacetyl, a widely used flavoring ingredient that gives microwave popcorn its buttery taste. Although no causative process has been established, the theory is that heated diacetyl creates a vapor that, when inhaled repeatedly over an extended period, causes scarring of the lungs, restricting the ability to exhale.

Evidence of a connection has been mounting ever since a November 2000 National Institute of Occupational Health and Safety (NIOSH) survey at the Gilster-MaryLee popcorn plant in Jasper, Mo., discovered plant employees had 3.3 times the rate of pulmonary obstruction compared with the general public, generating a rash of lawsuits.

More than 500 worker suits against popcorn and flavorings manufacturers nationwide are pending, says Kenneth McClain, a partner at Humphrey, Farrington & McClain. His firm has handled four suits resulting in verdicts ranging from $2.7 million to $20 million. Another 120 cases settled for undisclosed amounts.

Fama says one manufacturer alone paid more than $50 million in settlements. Total verdicts and settlements are in the hundreds of millions of dollars.

"We have workers that work in the flavoring companies [where the butter flavorings are manufactured], we have candy workers who are sick because anything with butter flavoring attached to it contains diacetyl, including butterscotch. Even root beer has diacetyl in it," McClain says. "We also have cases for people living around plants where diacetyl is used."

Gearing Up
Now McClain is preparing for consumer litigation. He says that within a few weeks of the media reports about Watson, he received inquiries from around the country from consumers diagnosed with bronchiolitis obliterans.

The consumer lawsuits will be similar to those previously filed on behalf of popcorn and flavoring plant workers, he says. "The injury is the same, the chemical is the same--it's just a different kind of exposure."

Potential damages from consumers alleging popcorn lung are extremely high because bronchiolitis obliterans can be life-threatening and has no cure. But the relatively small number of people who suffer from the disease will limit the overall impact of the litigation, product liability experts say.

"Will the publicity stimulate interest by the plaintiffs' bar? Yes. Will it mean a vast number of suits? My suspicion is no because the condition that people have associated with diacetyl is extraordinarily rare," says Vince Walkowiak, co-head of the product liability practice at Fulbright & Jaworski. "Even in manufacturing facilities where there have been studies, the incidence is less than 5 percent of the worker population."

Walkowiak also points out that few people share Watson's compulsion for eating microwave popcorn and breathing the fumes. "I know a lot of people who love microwave popcorn, but they don't eat two or three bags a day," he says.

Proactive Move
Nonetheless, the worker-safety issues alone are prompting government investigations in addition to the ongoing NIOSH studies. OSHA announced in April that it's initiating a National Emphasis Program to address the hazards of diacetyl for popcorn factory workers. The FDA, which currently gives diacetyl a "Generally Regarded as Safe" status, is investigating the effects of the chemical, as is the EPA. A bill to ban diacetyl in the workplace by 2010 is moving through the California legislature. In addition, the House passed Sept. 26 a bill to begin federal regulation of worker exposure to diacetyl.

Popcorn manufacturers aren't waiting to see the extent of the regulatory action or consumer litigation, however. A few days before the media reported on Dr. Rose's letter, Weaver Popcorn Co. announced it already had begun shipping new butter-flavored microwave popcorn that contains no diacetyl. Other microwave popcorn manufacturers, including American Pop Corn Co., ConAgra and General Mills, said they also plan to remove diacetyl from their products.

"These manufacturers acted proactively to maintain the reputation that they make a safe, quality product and respond immediately to any suggestion that the product represents a risk to consumers," Walkowiak says. "This could be a nice template for how to respond."

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