Last week, the Small Business Advocacy Review Panel submitted its “Small Business Regulatory Enforcement Fairness Act” (SBREFA) Panel Report to acting OSHA chief Jordan Barab, on the draft proposed rule on worker exposure to diacetyl.  The 259-page document summarizes (and attaches) the comments of 16 “small entity representa-tives” (SERs) who would be potentially affected by the rule.   SER participants included Weaver Popcorn, American Popcorn and Tee Lee Popcorn,  (see full list on page 40 of the report) and the issues seem to fall out naturally among three types of employers:  the microwave popcorn and flavor-manufacturing industries, firms in industries that are users of flavorings, and firms with naturally-occurring diacetyl, such as beer and wine producers.

The SBREFA process gives us a preview of issues that may be contentious during the official rulemaking process.  For example, SERs representing the wine industry and tortilla manufacturers said they should be exempt from any regulation on diacetyl.  The wine maker explained why (i.e., it’s naturually occurring), while the tortilla manufacturer wrote in an email:

“Do not regulate kitchens and end users.”  

“Exempt the tortilla industry from the regulation.”

On the issue of whether workers in some industry are still exposed to diacetyl, a representative of small- to medium- size bakers said:

“…many bakers are phasing out of their use of flavorings containing diacetyl, or already have moved to different flavorings that do not contain diacetyl.   ….while some bakers continue to use flavorings that contain diacetyl, the amount of diacetyl in the flavorings utilized appears to be less than 5% of the total flavor.”

The Grocery Manufacturers Association (GMA) argued against an OSHA-specific regulation on diacetyl, saying OSHA

“… should not attempt to adopt a substance-specific standard on the basis of the limited inadequate data currently in its possession.  In situations where the data are inadequate to establish a permissible exposure limit (PEL), the appropriate regulatory approach…is to rely on the enforcement of OSHA’s PPE standards, including its respiratory protection standard and the general duty clause, combined with education and outreach, to provide interim protection to workers while the necessary airborne exposure and toxicology data are being developed.”

GMA also submitted a toxicology review of diacetyl, focusing on “considerations and uncertainties for occupational risk assessment,”  and trying to bolsters its argument that what is unknown about diacetyl trumps what IS known about it.   The May 2009 review document notes:

“This review was funded by a group of member companies of the Grocery Manufacturers Association.  While the sponsors were allowed to review and comment on the contents of this analysis, the scientific opinions represent the view of Toxicology Excellence for Risk Assessment.”

Pop Weaver, one of the SERs, seems to accept that diacetyl is the culprit in workers’ ill health, but only if the definition of ill health is “bronchiolitis obliterans.”

“Bronchiolitis obliterans is the only disease we are aware of that some scientific literature has suggested may be caused by diacetyl and does not exist in the population at large (those not exposed to diacetyl).  Recent attempts to relate diacetyl to asthma and generalized, non-specific lung disease are unsupported by the science.  Furthermore, attempts to regulate work place exposures to prevent illnesses common in the population is not sound public health policy.”

I’m not sure who is advising Pop Weaver on “sound public health policy,” but from my perspective “sound public health policy” involves injury and illness prevention no matter the source.    Following Pop Weaver’s logic, we shouldn’t bother with interventions to protect workers from back injuries, or hearing loss, or dermatitis, because they are “common in the population.”  

Asthma is a prevalent disease in the U.S. population, but if we know that some portion of the cases are associated with exposure to say, diisocyanates in workplaces, why wouldn’t we want to try to regulate those exposures?   If epidemiological data suggests that workers exposed to flavoring agents have a higher prevalence or incidence of asthma or other respiratory symptoms than workers who are not exposed, shouldn’t steps be taken to eliminate those exposures?

In fact, Pop Weaver suggests just such a precautionary approach in a different part of their written comments.  They say:

“we were concerned that substituting an unknown, potentially more hazardous substance for diacetyl may not be in our associates’ [workers]best interest.  This concern was heightened by NIOSH presentations and published papers which suggested that acetoin may also be a chemical of concern, or that irritation of the lung and nasal passages may be exacerbated [by] other chemicals in the overall flavoring.  So Weaver established a policy that no new flavorings will be introduced without laboratory toxicology testing and evaluation by professional third party providers to determine the chemicals present in the proposed new flavorings.”

I’m glad to read that Pop Weaver is going to examine more closely the chemical composition of the flavoring agents they may put in their products, but it also begs the question: do we really need specially-flavored popcorn?  or much of the other artificially flavored foods we eat?    If you really want to know how much we don’t know about our food supply, read Andrew Schneider’s ColdTruth.com. 

OSHA identified at least 37 sub-industry sectors in which workers may be exposed to diacetyl, from dog and cat food makers, to breakfast cereal manufacturers, to roasted nuts and peanut butter plants.  It’s encouraging to me that Secretary Solis promised on March 16 real action on diacetyl, the required SBREFA panel was convened and their report now complete.*    From my read of the SBREFA document, OSHA’s challenge with the final rule is the same as it always is, demonstrating that a standard is:

• going to eliminate or materially reduce a significant risk to worker health or safety, and
• is economically and technological feasible for each affected industry.

At this point, the next step for OSHA is actually proposing a rule. 

*under the SBREF Act, the panel has 60 days to prepare a report.