Fundamental Fairness

Workers’ Compensation matters are adversarial in nature and must furnish all parties with due process, a concept that embodies fundamental fairness[1]. There are two sides, at least, to very story, and the justice requires that the hearing official balance the facts to determine an appropriate result within the confines of the rule of law.

To ascertain the truth parties have the right to cross-examine witnesses. If that right is denied, the concept of fundamental fairness is suppressed. 

A judge of compensation ordered stem cell medical treatment. Presented with evidence by way of expert opinion the judge was held to have denied the parties fundamental fairness by not allowing a medical expert to be cross-examined and failing to go on the record to memorialize the proceeding. 

The issue arose in a workers’ compensation matter where the injured worker moved for stem cell medical treatment to relieve a shoulder injury. The compensation judge held an off the record conversation with the parties in chambers and spoke to the medical expert on the telephone. The compensation judge ruled, without taking medical testimony, that the proposed controversial treatment, not FDA approved, was approved. 

The Appellate Division in reversing the compensation judge’s decision, stated: 

“Where an important issue is discussed in chambers, “a record must be made or a summary placed on the record as to what transpired in chambers. Only then is effective appellate review insured.” Klier v. Sordoni Skanska Const., 337 N.J. Super. 76, 86 (App. Div. 2001). We see no reason why the same caution should not apply where the motion for medical benefits is contested and a hearing is necessary. 

“ We recognize that under the Act, “hearing evidence, exclusive of ex parte affidavits, may be produced by both parties, but the official conducting the hearing shall not be bound by the rules of evidence.” N.J.S.A. 34:15-56. We also have held that “[w]hile the technical rules of evidence may be relaxed at workmen’s compensation proceedings, they may not be relaxed to the point of infringing on the parties’ due process rights or other fundamental rights.” Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 95-96 (App. Div. 1986) (citing 3 Larson, The Law of Workmen’s Compensation, § 79.25(c) (1983)). This includes the right of cross-examination. See id. at 96; see also California v. Green, 399 U.S. 149, 158 (1970) (describing cross-examination as “the greatest legal engine ever invented for the discovery of truth” (quoting 5 Wigmore on Evidence § 1367 (3d ed. 1940))); State v. Castagna, 187 N.J. 293, 309 (2006) (emphasizing importance and efficacy of cross-examination). 

"Crothall opposed stem cell treatment because it was not FDA approved. Dr. Krone’s testimony in chambers was not recorded and it was not taken under oath, yet it was found to be credible by the judge without affording Crothall the opportunity for cross-examination. We find that the procedures lacked fundamental fairness. We reverse the order and remand the motion for medical benefits to the workers compensation division for further proceedings consistent with this opinion. We do not express an opinion in support of or against petitioner’s claim for stem cell treatment in light of the inadequacy of this record. 

Even though the rules of evidence may be relaxed in a workers' compensation proceeding, the concept of fundamental fairness requires that the parties have the right to cross examine expert witnesses and that a formal record be made of the proceedings, even if conducted in chambers.

[1] “Fair Trial,” Legal Information Institute, Cornell Law School. (Google Scholar)

Haggerty v. Crothall Service Group, Docket No. A-4478-17T4, 2019 WL 1975907 (Decided May 3, 2019) UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Superior Court of New Jersey, Appellate Division.

See also:

Occupational Exposure to Diacetyl and Acetaldehyde Results in Compensable Colorectal Cancer

Medical Treatment is an Exclusive Remedy Not a Reasonable Accommodation

Insufficient Evidence: When "A Lot" is Not Enough

The Admissibility of Scientific Evidence: A New Evidentiary Standard

…. 

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Occupational Exposure to Diacetyl and Acetaldehyde Results in Compensable Colorectal Cancer

An employee exposed at work to flavoring ingredients including Diacetyl and Acetaldehyde, was awarded workers’ compensation benefits as a result of being diagnosed with colorectal cancer. The case is significant because the Court adopted scientific evidence that associated chemical exposure in the workplace to an increased risk of a malignancy based on expert testimony that by DNA testing, the exposed worker’s body could not detoxify from the hazardous chemical.

Federal court permits employees to sue Givaudan for diacetyl exposure

The Seventh Circuit Court of Appeals has ruled that the manufacturer of diacetyl is not insulated from a lawsuit by exposed workers merely because their employer failed to warn them of the hazards of the substance.

Approximately 20 employees of ConAgra Brands (Orville Redenbacher microwave popcorn plant) who were employed in Indiana. The workers developed a disease known as “popcorn lung,” an inflammatory lung disease known as bronchitis obliterans. The court declined to accept the defense of Givaudan Flavors Corp., the manufacturer, who alleged that the employer was a sophisticated user and should have been responsible to warm the employees of the hazard of the diacetyl.

US DOT Bans the Use of Electronic Cigarettes on Commercial Flights

The ProVape-1 by ProVape.com
Electronic cigarette/vaporizer mod which holds a larger battery.
Shown with a 901 atomizer attached. (Photo credit: Wikipedia)

U.S. Transportation Secretary Anthony Foxx today announced a final rule that explicitly bans the use of electronic cigarettes on commercial flights. The final rule applies to all scheduled flights of U.S. and foreign carriers involving transportation in, to, and from the U.S. 

“This final rule is important because it protects airline passengers from unwanted exposure to electronic cigarette aerosol that occurs when electronic cigarettes are used onboard airplanes,” said Secretary Foxx. “The Department took a practical approach to eliminate any confusion between tobacco cigarettes and e-cigarettes by applying the same restrictions to both.”

Coffee Workers at Risk for Lung Disease

Today's post is shared from cdc.gov

Roasted Coffee Beans

Obliterative bronchiolitis, an irreversible form of lung disease in which the smallest airways in the lung (the bronchioles) become scarred and constricted, blocking the movement of air, was previously identified in flavoring manufacturing workers and microwave popcorn workers who were occupationally exposed to diacetyl (2,3-butanedione) or butter flavorings containing diacetyl. Now, NIOSH research finds that workers at coffee processing facilities may also be at risk.

NJ company cited by OSHA for willfully exposing workers to diacetyl

A Somerset County New Jersey flavoring and fragrance manufacturer exposed workers to respiratory and other workplace safety and health hazards. These exposures have created a new wave of occupation litigation by injured workers and their families.

New Study Reports Flavorings Cause Lung Damage

A just published study reports flavoring chemicals in E-Cigarettes: Diacetyl, 2,3-Pentanedione, and Acetoin in a sample of 51 products, including fruit-, candy-, and cocktail-flavored e-cigarettes pose a health risk.

The Harvard Gazette reported that, "Diacetyl, a flavoring chemical linked to cases of severe respiratory disease, was found in more than 75 percent of flavored electronic cigarettes and refill liquids tested by researchers at Harvard T.H. Chan School of Public Health.

Diacetyl Emerges Again As A Serious Threat to Worker Health

Emerging again in the workplace are serious and health threatening exposures to Diacetyl. The Journal Sentinel has reported:

"Most coffee roasters have never heard of the chemical compound diacetyl. Those who have, associate it solely with its devastating effects on microwave popcorn workers and those in the flavoring industry. They don't suspect that it could be wreaking the same havoc on their own lungs.

"We don't make flavored coffee, many in the roasting business say. It's not a problem for us.

"But air sampling by the Milwaukee Journal Sentinel shows reason to worry.

"Tests at two midsized Wisconsin roasteries that agreed to let the news organization analyze the air in their production areas found diacetyl levels from unflavored roasted coffee that exceeded safety standards proposed by the U.S. Centers for Disease Control and Prevention.

"In some areas, by nearly four times the concentration.

"Workers exposed to similar levels at popcorn plants suffered serious, incurable lung disease.
Click here to read the entire article "Coffee roasters' health at risk from chemical compound, air samples suggest--But most workers don't realize their lungs may be in danger from exposure to diacetyl"

Read more about Diacetyl and workers' compensation:
NIOSH to Propose New Criteria for Diacetyl Exposure
Aug 18, 2011
The National Institute for Occupational Safety and Health (NIOSH) invites public comment on a draft document, "Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-pentanedione.” For public ...

Workers' Compensation: Flavoring 2,3-pentanedione ...
Aug 20, 2012
2,3-pentanedione should be added to that list. "Flavorings-related lung disease is a potentially disabling disease of food industry workers associated with exposure to the α-diketone butter flavoring, diacetyl (2,3-butanedione).

Workers' Compensation: Legislation to Protect Food ...
Sep 27, 2007
The legislation would force the U.S. Occupational Safety and Health Administration to issue rules limiting workers' exposure to diacetyl, a chemical used in artificial food flavoring for microwave popcorn and other foods.

Flavoring Workers At Higher Risk for Alzheimers
Aug 04, 2012
It found evidence that the ingredient, diacetyl (DA), intensifies the damaging effects of an abnormal brain protein linked to Alzheimer's disease. The study appears in ACS' journal Chemical Research in Toxicology.

….

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Flavoring 2,3-pentanedione Reported to Cause Respiratory Harm

Photo Credit: Fir0002/Flagstaffotos

Popcorn flavoring has been reported hazardous to your health and a new report indicates that
2,3-pentanedione should be added to that list.

"Flavorings-related lung disease is a potentially disabling disease of food industry workers associated with exposure to the α-diketone butter flavoring, diacetyl (2,3-butanedione). To investigate the hypothesis that another α-diketone flavoring, 2,3-pentanedione, would cause airway damage, rats that inhaled air, 2,3-pentanedione (112, 241, 318, or 354 ppm), or diacetyl (240 ppm) for 6 hours were sacrificed the following day. Rats inhaling 2,3-pentanedione developed necrotizing rhinitis, tracheitis, and bronchitis comparable to diacetyl-induced injury. To investigate delayed toxicity, additional rats inhaled 318 (range, 317.9—318.9) ppm 2,3-pentanedione for 6 hours and were sacrificed 0 to 2, 12 to 14, or 18 to 20 hours after exposure. Respiratory epithelial injury in the upper nose involved both apoptosis and necrosis, which progressed through 12 to 14 hours after exposure. Olfactory neuroepithelial injury included loss of olfactory neurons that showed reduced expression of the 2,3-pentanedione–metabolizing enzyme, dicarbonyl/L-xylulose reductase, relative to sustentacular cells. Caspase 3 activation occasionally involved olfactory nerve bundles that synapse in the olfactory bulb (OB). An additional group of rats inhaling 270 ppm 2,3-pentanedione for 6 hours 41 minutes showed increased expression of IL-6 and nitric oxide synthase-2 and decreased expression of vascular endothelial growth factor A in the OB, striatum, hippocampus, and cerebellum using real-time PCR. Claudin-1 expression increased in the OB and striatum. We conclude that 2,3-pentanedione is a respiratory hazard that can also alter gene expression in the brain."

Click here to read: Respiratory and Olfactory Cytotoxicity of Inhaled 2,3-Pentanedione in Sprague-Dawley Rats, American Journal of Pathology, Spet. 2012.

.....
For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Read more about flavorings

Workers' Compensation: Flavoring Workers At Higher Risk for ...

Aug 04, 2012

A new study raises concern about chronic exposure of workers in industry to a food flavoring ingredient used to produce the distinctive buttery flavor and aroma of microwave popcorn, margarines, snack foods, candy, baked ...

http://workers-compensation.blogspot.com/

Workers' Compensation: NIOSH Warns of Flavoring-Related Lung ...

Jun 21, 2012

The National Institute of Occupational Safety and Health (NIOSH) is now providing information to healthcare providers to assist them to identify and treat flavoring-related lung disease. Workers who breathe flavoring chemicals...

http://workers-compensation.blogspot.com/

OSHA Issues Bulletin on the Hazards of Exposure to Flavoring ...

Dec 22, 2010

This Safety and Health Information Bulletin (SHIB) is addressed to employers and workers involved in the manufacture of "flavorings," (as defined by the Food and Drug Administration (FDA) in 21 CFR 101.22) in flavoring, ...

http://workers-compensation.blogspot.com/

Workers' Compensation: $30.4 Million Verdict in Popcorn Flavoring ...

Sep 06, 2010

A jury in the Chicago area awarded a local factory worker $30.4 Million for a pulmonary illness resulting from exposure to popcorn flavoring, diacetyl. The verdict is considered to be largest ever in the US for an individual claim ...

http://workers-compensation.blogspot.com/

Related articles

• Cell Phone and Brain Malignancies: The Right to Know Radiation Act
• OSHA Sanctions Chicago Company With $325,700 in Fines for Safety Violations
• National Experts Call Workers Compensation System Irrational and Unjust

Flavoring Workers At Higher Risk for Alzheimers

(Photo credit: Wikipedia)

A new study raises concern about chronic exposure of workers in industry to a food flavoring ingredient used to produce the distinctive buttery flavor and aroma of microwave popcorn, margarines, snack foods, candy, baked goods, pet foods and other products. It found evidence that the ingredient, diacetyl (DA), intensifies the damaging effects of an abnormal brain protein linked to Alzheimer’s disease. The study appears in ACS’ journal Chemical Research in Toxicology.


Robert Vince and colleagues Swati More and Ashish Vartak explain that DA has been the focus of much research recently because it is linked to respiratory and other problems in workers at microwave popcorn and food-flavoring factories. DA gives microwave popcorn its distinctive buttery taste and aroma. DA also forms naturally in fermented beverages such as beer, and gives some chardonnay wines a buttery taste. Vince’s team realized that DA has an architecture similar to a substance that makes beta-amyloid proteins clump together in the brain — clumping being a hallmark of Alzheimer’s disease. So they tested whether DA also could clump those proteins.


DA did increase the level of beta-amyloid clumping. At real-world occupational exposure levels, DA also enhanced beta-amyloid’s toxic effects on nerve cells growing in the laboratory. Other lab experiments showed that DA easily penetrated the so-called “blood-brain barrier,” which keeps many harmful substances from entering the brain. DA also stopped a protective protein called glyoxalase I from safeguarding nerve cells. “In light of the chronic exposure of industry workers to DA, this study raises the troubling possibility of long-term neurological toxicity mediated by DA,” say the researchers.


The authors acknowledge funding from the Center for Drug Design (CDD) research endowment funds at the University of Minnesota, Minneapolis.
....
For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.


Read  more about diacetyl

Workers' Compensation: NIOSH Warns of Flavoring-Related Lung ...

Jun 21, 2012

However, it is important to consider the possibility of flavoring-related lung disease in workers who have been exposed to diacetyl or similar flavoring chemicals and have respiratory symptoms. About Symptoms Symptoms are ...

http://workers-compensation.blogspot.com/

NIOSH to Propose New Criteria for Diacetyl Exposure

Aug 18, 2011

For public review and comment, the draft document summarizes current scientific knowledge about the occupational safety and health implications of the food flavorings diacetyl and 2,3-pentanedione, and recommends ...

http://workers-compensation.blogspot.com/

Workers' Compensation: OSHA Issues Bulletin on the Hazards of ...

Dec 22, 2010

Diacetyl is a substance widely used in food and beverage flavorings. Diacetyl is used in a wide variety of food flavorings, although flavor manufacturers have begun to reduce or eliminate the amount of diacetyl in some kinds ...

http://workers-compensation.blogspot.com/

California Becomes First State to Set Safety Guidelines for Flavoring

Dec 04, 2010

Cal/OSHA continues to be a national leader in worker safety by implementing a new standard today to protect employees who work with diacetyl, a chemical commonly used to give food flavorings a buttery taste. Cal/OSHA, a...

http://workers-compensation.blogspot.com/

Related articles

• Canada To Study the Health Effects of Wind Turbines
• NJ Supreme Court Bars Expansion of Injured Workers Remedies
• Nurse Case Managers: Friend Or Foe?

NIOSH Warns of Flavoring-Related Lung Disease

The National Institute of Occupational Safety and Health (NIOSH) is now providing information to healthcare providers to assist them to identify and treat flavoring-related lung disease. Workers who breathe flavoring chemicals containing diacetyl, such as butter flavoring, may be at risk of severe obstructive lung disease.



Who is at risk? 


Workers who make, use, or work near flavoring chemicals containing diacetyl or 2,3-pentanedione may be at risk. Settings where these exposures may occur include:

• Flavoring plants 
• Microwave popcorn plant
•   Commercial and retail bakeries
•   Snack food and candy plants
•   Dairy products and packaged vegetable oil plants (e.g., margarine, cooking oil)
•   Other flavored food production plants.Exposures in the flavoring industry and in microwave popcorn production have caused workers to have severe lung disease. The burden of hazardous exposures and risk to workers in other settings remains unclear. However, it is important to consider the possibility of flavoring-related lung disease in workers who have been exposed to diacetyl or similar flavoring chemicals and have respiratory symptoms

About Symptoms


Symptoms are not present in all cases. When present, symptoms can range in severity. The main respiratory symptoms experienced by workers include:

• Cough (usually without phlegm)
• Shortness of breath on exertion
• Wheezing

Other symptoms experienced by some workers include: 

• Fever, night sweats, or weight loss
• Frequent or persistent eye, nose, throat, or skin irritation

In cases of flavoring-related lung disease, respiratory symptoms do not typically improve when the worker goes home at the end of the workday, on weekends, or on vacations. The symptoms often have a gradual onset but can occur suddenly. Work-related exposure to butter flavoring chemicals  might also lead to asthma or exacerbate pre-existing asthma.

Related Topics

NIOSH to Propose New Criteria for Diacetyl Exposure

Aug 18, 2011

For public review and comment, the draft document summarizes current scientific knowledge about the occupational safety and health implications of the food flavorings diacetyl and 2,3-pentanedione, and recommends ...

OSHA Issues Bulletin on the Hazards of ...

Dec 22, 2010

Diacetyl is a substance widely used in food and beverage flavorings. Diacetyl is used in a wide variety of food flavorings, although flavor manufacturers have begun to reduce or eliminate the amount of diacetyl in some kinds ...

California Becomes First State to Set Safety Guidelines for Flavoring
Dec 04, 2010
Cal/OSHA continues to be a national leader in worker safety by implementing a new standard today to protect employees who work with diacetyl, a chemical commonly used to give food flavorings a buttery taste. Cal/OSHA, a...

Legislation to Protect Food Flavoring ...
Sep 27, 2000The legislation would force the U.S. Occupational Safety and Health Administration to issue rules limiting workers' exposure to diacetyl, a chemical used in artificial food flavoring for microwave popcorn and other foods.

Candy Makers Found to Have Popcorn Lung - Flavoring Illness
Apr 07, 2009
It has been reported by, Andrew Schneider, investigative reporter, that severe cases of "popcorn lung" caused by exposure to diacetyl butter are now being reported in candy makers as well. Five cases of severe lung disease ...

$30.4 Million Verdict in Popcorn Flavoring ...

Sep 06, 2010

A jury in the Chicago area awarded a local factory worker $30.4 Million for a pulmonary illness resulting from exposure to popcorn flavoring, diacetyl. The verdict is considered to be largest ever in the US for an individual claim ...

Related articles

• 50 Cancers To Be Covered Under the 9-11 Zadroga Health Claim Fund

  ---

• OSHA fines Clifton, NJ, stucco contractor more than $108,000 for exposing workers to fall hazards

  ---

• Diesel Exhaust Linked to Cancer

  ---

Deadly Delay: The Chemical Industry's Game Play

The Toxic Substances Control Act (TSCA) is in desperate need of reform. Its weaknesses have allowed chemical companies to exploit the act by thwarting the EPA's attempts to finalize health assessments and delaying regulation of chemicals -- sometimes for decades. The chemical industry's roadblocks often follow predictable patterns:

• Attack early drafts of health assessments
• Force new reviews
• Hold workshops populated with industry-funded panelists
• Introduce new industry-funded studies when assessments are close to final
• Force more reviews
• Enlist elected officials to assist with political interference
• Attack new assessment drafts

Using these tactics, the chemical industry has effectively prevented the EPA from achieving its mission to protect human health.

This report details how the U.S. legal system and TSCA itself have helped the chemical industry to be effective in its efforts to delay regulations. Congress needs to reform TSCA to make it a more effective regulatory tool. The chemical industry should not be able to endlessly postpone regulatory decisions while profiting from unregulated chemical sales until all scientific controversies and uncertainties, large and small, have been eliminated. With good public policy, the EPA should be empowered to make the best decisions it can on a timely basis using existing information, and apply new science to update its evaluations as it becomes available.

Full Report: The Chemical Industry Delay Game : How the Chemical Industry Ducks Regulation of the Most Toxic Substances. By Jennifer Sass. October 2011

Related articles

• Report - The Delay Game: How the Chemical Industry Ducks Regulation of the Most Toxic Substances (bespacific.com)
• US CDC Publishes Safety Nanotechnology Guidance (workers-compensation.blogspot.com)
• OSHA Cites Manufacturers and Distributors of Formaldehyde Hair Products (workers-compensation.blogspot.com)
• NIOS to Propose New Criteria for Diacetyl Exposure (workers-compensation.blogspot.com)
• The Culture of Workers Compensation Needs to Change (workers-compensation.blogspot.com)

NIOSH to Propose New Criteria for Diacetyl Exposure

The National Institute for Occupational Safety and Health (NIOSH) invites public comment on a draft document, "Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-pentanedione.”


For public review and comment, the draft document summarizes current scientific knowledge about the occupational safety and health implications of the food flavorings diacetyl and 2,3-pentanedione, and recommends occupational exposure limits and measures for controlling work related exposures to diacetyl and 2,3-pentanedione, based on the current state of knowledge.


The draft document is available athttp://www.cdc.gov/niosh/docket/review/docket245/default.html for written public comment until Oct. 14, 2011. NIOSH will also hold a public meeting to discuss and obtain comments on Aug. 26, 2011, in Washington D.C.


"Occupational exposure to diacetyl has been associated with severe obstructive lung disease, bronchiolitis obliterans, and decrease in lung function," said NIOSH Director John Howard, M.D. "NIOSH has provided over a decade of research and leadership in this important scientific area. In addition to the recommended exposure limits (RELs), this draft document provides for public comment a comprehensive review of scientific literature, a quantitative risk assessment, and valuable guidance to reduce occupational exposures to diacetyl and 2,3-pentanedione. We invite public comment on the draft Criteria Document to help us develop final recommendations."

The draft document includes, for comment:
For Diacetyl, a recommended exposure limit (REL) of 5 parts per billion (ppb) as an eight-hour, time-weighted average, (TWA) during a 40-hour work week. To further protect against effects of short-term exposures, NIOSH recommends in the draft document a short-term exposure limit (STEL) for diacetyl of 25 ppb for a 15-minute time period.


For 2,3-pentanedione, a recommended exposure limit (REL) of 9.3 parts per billion (ppb) as an eight-hour, time-weighted average, (TWA) during a 40-hour work week. The REL for 2,3-pentanedione in the draft document is based upon the lowest level at which the substance reliably can be detected using the existing analytical method, and should not be misconstrued to imply that 2,3-pentanedione is of lower toxicity than diacetyl. Further, NIOSH recommends a STEL of 31 ppb to limit peak exposures for 2,3-pentanedione on the same basis of analytic method limitation.

Related articles

• CDC Seeks to End NeedleStick Injuries (workers-compensation.blogspot.com)
• OSHA Issues Bulletin on the Hazards of Exposure to Flavoring Substance 
• California Becomes the First State to Set Safety Guidelines for Flavoring Chemical
• $30.4 Million Verdict in Popcorn Flavoring Lawsuit
• Candy Makers Found to Have Popcorn Lung Flavoring Illness

OSHA Issues Bulletin on the Hazards of Exposure to Flavoring Substances

DIACETYL - BASED FLAVORS

The following flavors may contain diacetyl

Dairy Flavorings	Hybrid Dairy  Flavorings  (Contains a substantial dairy content)	Brown Flavorings	Alcohol Flavorings	Other Flavorings	Fruit Flavorings
Butter	Butter Pecan	Butterscotch	Brandy	Nutmeg	Strawberry
Cheese	Strawberry Crème	Caramel	Rum	Honey	Cranberry
Cream Cheese	Vanilla Crème	Vanilla	Whisky	Graham Cracker	Raspberry
Cheesecake	Other Crème Flavors	Coffee	Pina Colada	Vinegar	Blackberry
Milk	Root Beer Float	Tea		Meat flavors (e.g. gravy	Boysenberry
Yogurt	Chai	Toffee		Malt	Other berry flavors
Ice Cream		Chocolate (esp. milk chocolate)		Wine	Fruit flavors -nearly any kind (e.g., banana, apple, grape, pear)
Egg		Cocoa		Beer	Cider
Ranch Dressing		Cocoa Butter		Tequila	Tomato
Sour Cream		Maple
Buttermilk		Brown Sugar
Mayonnaise		Marshmallow
		Peanut Butter
		Praline
Starter Distillate or Butter Starter Distillate		Hazelnut & other nut flavors

This Safety and Health Information Bulletin (SHIB) is addressed to employers and workers involved in the manufacture of "flavorings," (as defined by the Food and Drug Administration (FDA) in 21 CFR 101.22)¹ in flavoring, food and beverage manufacturing. The SHIB provides information about the potential health effects associated with exposure to flavoring substances or its substitutes. It is important that all manufacturers and users of flavorings understand that even though a flavoring is considered safe to eat, it does not mean that the flavoring is also safe to breathe or handle in occupational settings.

Many substances are used in the manufacture of flavorings. Diacetyl is a substance widely used in food and beverage flavorings. Diacetyl is used in a wide variety of food flavorings, although flavor manufacturers have begun to reduce or eliminate the amount of diacetyl in some kinds of flavorings because of health concerns. The principal types of flavorings that use diacetyl are dairy flavors (e.g., butter, cheese, sour cream, egg, and yogurt flavors) and the so-called "brown flavors" (e.g., caramel, butterscotch, brown sugar, maple or coffee flavors). Some fruit flavors (e.g., strawberry and banana) may also contain diacetyl (Table 1). There are also a variety of special uses of diacetyl such as in vanilla, tea, and other flavorings that are difficult to categorize broadly. Industries where some firms are known to use these flavorings include, but are not limited to, candies, snack foods, prepared canned or frozen foods (especially with sauces), some dairy products, bakeries, animal foods, soft drinks, and flavored cooking oils. Some foods (e.g., dairy products, wine and beer) contain naturally occurring diacetyl.

The occurrence of severe lung disease among 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. They have begun to use substitutes such as acetyl propionyl (2,3 pentanedione) and acetoin. These substitutes, some of which are structurally similar to diacetyl, have not been well-studied and there is growing concern that they also pose health risks for workers. There is additional concern that combinations of chemicals may increase the harm.

OSHA does not have permissible exposure limits (PELs) for most flavoring substances, including diacetyl and acetoin. The SHIB provides recommendations for controlling exposure to diacetyl, diacetyl substitutes and other flavorings to protect employees from serious respiratory disease. 

Related articles

• California Becomes First State to Set Safety Guidelines for Flavoring Chemical (workers-compensation.blogspot.com)
• $30.4 Million Verdict in Popcorn Flavoring Lawsuit (workers-compensation.blogspot.com)
• Employee Sues Co-Worker Following Perfume Assault (workers-compensation.blogspot.com)