Researchers have reported bronchiolitis obliterans in populations ranging from the builders of boat hauls to Taiwanese women who used a natural weight loss remedy. Still, in the legal and business community, this serious respiratory condition is often viewed as a problem unique to the microwave popcorn and flavoring industries.

As researchers continue to focus on the disease, bronchiolitis obliterans is quickly expanding to become a widespread phenomena in many industries. Researchers continue to expand the list of industries impacted by bronchiolitis obliterans while, at the same time, loosening the diagnostic requirements for this serious disease.

In order to properly respond to claims of bronchiolitis obliterans, businesses must have basic knowledge of chemicals in their products that could pose a risk to employees and consumers.

What Is Bronchiolitis Obliterans?

Bronchiolitis obliterans is a serious and irreversible respiratory condition that can be caused by exposure to toxic substances. This condition occurs when the bronchioles in the lungs are compressed and narrowed by scar tissue and/or inflammation causing extreme shortness of breath. In severe cases, bronchiolitis obliterans can be deadly or necessitate a lung transplant.

However, some expert witnesses will stretch the definition of bronchiolitis obliterans to cover patients with less severe symptoms. What was once traditionally viewed as a disease connected with exposure to toxic gas is morphing to encompass those who pop a few too many bags of popcorn in their home.

The chemical flavoring diacetyl is most commonly associated in the news with bronchiolitis obliterans. Diacetyl is commonly used in food and beverages to provide a butter flavor. The chemical is an ingredient in snacks, beverages, baked goods and a variety of other edibles. While diacetyl naturally occurs in many foods and drinks, it is also added as a flavoring to improve the taste and smell of many products.

Over the last decade, some scientists and regulators identified exposure to large amounts of diacetyl as a likely cause of bronchiolitis obliterans. As a result, diacetyl exposure related to butter flavoring spawned hundreds of lawsuits by plant workers and now consumers. The widespread use of diacetyl in the food industry and the chemical’s association with bronchiolitis obliterans has led some commentators to suggest that diacetyl could be the “new asbestos.”

In the wake of litigation and controversy, some manufacturers have removed diacetyl from their products. However, the respiratory safety of the chemicals used as substitutes has been called into question. Some researchers believe that the butter flavoring chemical pentanedione could also cause bronchiolitis obliterans.

The Occupational Safety and Health Administration and the National Institute for Occupational Safety and Health have noted this predicament. As a result, some businesses still use diacetyl as they wait to determine the safety of replacement chemicals of definitive regulatory guidance.

Lawsuits in Food and Beverage Industries Continue

Perhaps the earliest claims of bronchiolitis obliterans caused by exposure to a food or beverage occurred in Taiwan in the mid-1990s. At the time, the plant Sauropus androgynus, also known as the sweet leaf or star gooseberry, was popularly believed to help with weight loss. Restaurants began to serve the plant as a side dish and "natural" food promoters extolled the health benefits of the plant's raw juice.

To take advantage of the plant's supposed weight loss benefits, some young Taiwanese women drank the raw juice mixed. To mask the juice's repulsive taste, the women mixed it with tropical fruit juice, which allowed them to consume large amounts of the juice.

The S. androgynus fad came to a quick end when researches diagnosed dozens of young women with bronchiolitis obliterans resulting from consumption of the raw juice. Despite widespread coverage in the Asian media of the women's respiratory injuries, you can still find Americans praising the plant's health benefits online.

Researchers' attentions have turned from obscure natural remedies to a product with more widespread appeal: microwave popcorn. While the status of diacetyl in the workplace remains uncertain, employees continue to file lawsuits alleging bronchiolitis obliterans caused by butter flavoring.

Bronchiolitis obliterans first attracted regulatory attention in 2000 when the Missouri Department of Health notified the NIOSH of eight possible cases of bronchiolitis obliterans in a single popcorn plant. In 2002, NIOSH reported an increased rate of lung disease in workers who mixed butter flavorings at microwave popcorn plants. These findings led employees of popcorn plants, flavoring manufacturers and related industries to file hundreds of lawsuits across the country.

The litigation does not appear to be slowing down, and new cases continue to pop up around the country. Plaintiffs' attorneys, however, were not satisfied with limiting the diacetyl litigation to claims by employees alone. Plaintiffs' attorneys continued to search for ways to expand the litigation, given the relatively limited number of employees who are exposed to diacetyl on the job.

A handful of microwave popcorn consumers have alleged bronchiolitis obliterans with varying degrees of success. At least one such claim was rejected in federal court, and a jury in Missouri rejected another consumer claim. However, a jury in Colorado recently awarded Wayne Watson $7.2 million for lung injuries resulting from exposure to microwave popcorn that he prepared in his home.

Watson sued grocery retailers, microwave popcorn manufactures and butter flavoring manufacturers for negligence, strict liability for design defect, failure to warn and violation of Colorado's Uniform Deceptive Trade Practices Act. In addition to compensation for economic damages, noneconomic damages and his wife's loss of consortium claim, the court awarded Watson $5 million in punitive damages from popcorn manufacturer Gilster-Mary Lee.

The future of consumer claims arising from bronchiolitis obliterans remains uncertain. Bronchiolitis obliterans remains a rare disease, and it is unlikely that many people contract it in the absence of industrial strength concentrations and exposures. Also, it is unlikely that there are many latent cases of bronchiolitis obliterans because the disease tends to manifest soon after exposure to the causal agent.

It remains to be seen whether the Watson case was an outlier and whether future cases alleging bronchiolitis obliterans from microwave popcorn will prevail. It is probable that consumer claims will arise from the introduction of new or poorly understood products to the marketplace or in situations where consumers undertake industrial tasks at home in “do it yourself” projects.

OSHA Enforcement Expands

The threat of OSHA enforcement is the most immediate threat that businesses face involving bronchiolitis obliterans. In April 2013, OSHA cited Natural Flavors Inc. for violation involving the use of diacetyl. OSHA’s New York regional administrator, Robert D. Kulick, accused Natural Flavors of failing to take “the necessary steps to properly assess exposure and protect its employees.”

Specifically, OSHA cited the company for a willful violation, with a penalty of $28,000, for the company's failure to adequately identify and evaluate respiratory hazards. OSHA also cited Natural Flavors for a $2,800 serious violation for allegedly allowing its employees to be overexposed to diacetyl.

Natural Flavors received two citations for failure to implement a site-specific respiratory protection program and update material safety data sheets within three months of receiving significant new information regarding chemical hazards or ways to protect against the hazards. These citations, along with eight other miscellaneous citations, totaled $60,400.

While, in the case of diacetyl, OSHA is showing an interest in enforcement, OSHA itself has little definitive guidance when it comes to preventing bronchiolitis obliterans. This leaves employers in a precarious situation when they realize they use chemicals that could cause bronchiolitis obliterans. Under OSHA’s general duty clause, all employers must provide a place of employment which is “free from recognized hazards” that could cause death or serious harm.

Under this standard, employers have a duty to take protective measures once they identify that there is a serious hazard in the workplace. One of the best defenses against claims associated with bronchiolitis obliterans in the workplace continues to be a well-implemented hazard communication program.

Employers should review their material safety data sheets to make sure that they adequately inform employees of the risks posed by chemicals that could cause bronchiolitis obliterans or other injuries. Likewise, employers must consider the implementation of a respiratory program designed to protect employees. Nonetheless, even today, OSHA has not defined a permissible exposure limit for diacetyl.

At the present time, most research and government attention regarding bronchiolitis obliterans concerns exposures from the use of flavorings. However, it appears that researchers and regulators are starting to expand their focus to other industries and chemicals that could be related to bronchiolitis obliterans.

As a result, it is recommend that businesses that use chemicals suspected of causing bronchiolitis obliterans assess the risk that these chemicals could cause to employees or consumers.

Multiple Chemicals Could Cause Bronchiolitis Obliterans

Some now allege that the widely used chemical styrene can cause bronchiolitis obliterans. Researchers identified bronchiolitis obliterans in six boat builders who worked preparing fiberglass with styrene resins. Doctors also diagnosed a man with bronchiolitis obliterans resulting from brief exposure to smoke from burning polystyrene home insulation after a home improvement project.

Both styrene resin and polystyrene are widely used in the industry. Styrene resin is used in boats, industrial tanks, countertops, bathtubs and construction materials. Polystyrene is used to make products such as foam cups, insulation and packaging material.

The National Institute of Health’s website identifies a number of other chemicals that could cause bronchiolitis obliterans, including nitrogen dioxide, sulfur dioxide, ammonia, hydrogen fluoride, phosgene, hydrogen bromide, hydrogen chloride, methyl isocyanate and hydrogen sulfide. Businesses that use or generate these chemicals should monitor OSHA and NIOSH reports to see if these chemicals generate scientific or regulatory attention related to bronchiolitis obliterans.

With extensive numbers of researchers and plaintiffs’ attorneys focused on bronchiolitis obliterans, it is certain that this serious disease will continue to be a subject of scrutiny for employers and manufacturers across numerous industries.

As seen in Law360.