Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, April 26, 2007

Response to Michael

Well, Michael, my friend:  With respect to hiring and firing U.S. Attorneys, I say ("shrugging [my] shoulders"), the White House is entitled -- of course -- to do what it wants.  And, I suspect I am as clear about the merits of OSHA's policies as you are, yet I retain my doubts about whether it makes sense to assimilate debates about OSHA policy to, say, debates about a ban on partial-birth abortion. 

As for your comment about the death-penalty cases, I share your admiration for Judge Noonan.  That said, I'm curious:  Is your claim that -- since, after all, any case that reaches the Supreme Court is one about which reasonable people can disagree -- no decent judge may ever vote against a claim brought by an inmate on death row?  You and I agree that the death penalty should be abolished.  Does this mean, though, that we are precluded from thinking that not everyone on death row has a winning legal argument?

April 26, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Wednesday, April 25, 2007

Two Responses to Rick Garnett

1.  Rick's comment re the OSHA story (here) strikes me as complacent.  (As did Rick's earlier comment about dismissal of the several U.S. attorneys, when the story first broke and I posted a piece by the NYTs Adam Cohen.  I could almost see Rick shrugging his shoulders as he said, in effect, what's the problem, the White House and Gonzales are entitled to do what they want, the U.S. attorneys are political appointees after all.)  Rick writes:  "I have no idea whether OSHA is employing sensible policies or not."  Well, I would love to hear what Rick thinks when he has had time to achieve some clarity about the matter.  (Just as I would love to hear what Rick now thinks about the dismissal of the U.S. attorneys.)

2.  In response to Rick's question to me about the three capital punishment cases decided by the Supreme Court today:  If there is room for a reasonable difference in judgments about the proper outcome of the cases, which way should the benefit of the doubt be resolved, when a human being's life hangs in the balance?  (I think I know how John Noonan would respond.).  Of course, one may say that there isn't room for a reasonable difference in judgments--that Kennedy and the four non-Catholics justices were not merely wrong but unreasonably wrong.  Ah, such confidence!  But is such confidence appropriate, much less admirable, when a human being's life hangs in the balance?

April 25, 2007 in Perry, Michael | Permalink | TrackBack (0)

Getting it right

Commenting on the Court's capital-sentencing decisions today, Michael notes that the 5 Catholic Justices split (1-4) in ruling that the Texas Court of Criminal Appeals -- I'm quoting Lyle Denniston -- "wrongly put up a new legal barrier to a death row inmate's challenge to jury instructions in his sentencing."  Michael asks, "which Catholic[s] got it right?"

I don't know.  (The opinions are here.)  I am confident, though, that the question presented -- whether a defendant's pretrial objections to jury instructions preserved for review a particular constitutional challenge to those instructions -- is one to which the Catholic faith does not supply an answer.  Do you disagree, Michael?

April 25, 2007 in Garnett, Rick | Permalink | TrackBack (0)

"A Pro-Life Issue"

Michael urges -- "urgent[ly]" -- those of us who vote Republican to "do something about the unholy folly [of OSHA employing 'voluntary compliance strategies'].  This too, after all, is a pro-life issue."

Is it?  I mean, is it a "pro-life issue" in a way that distinguishes it from any question -- or, at least, many, many policies -- of regulatory policy?  I have no idea whether OSHA is employing sensible policies or not.  But, I am confident that OSHA is not acting in a manner that involves the constitutionalization of a license to kill human fetuses.  Certainly, I concede the rhetorical usefulness of calling this a "pro-life issue", but isn't there a non-trivial risk of missing the point associated with suggesting that, say, the question whether the government should fund abortions is really the same, and of the same import, as the question how best to promote workplace safety?

April 25, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Notice How the Five Catholic Justices Split in these Capital Punishment Cases

And which Catholic(s) got it right?  Justice Kennedy or Justices Scalia/Thomas/Roberts/Alito?

April 25, 2007

Supreme Court Throws Out 3 Death Sentences


Filed at 11:19 a.m. ET

WASHINGTON (AP) -- The Supreme Court threw out death sentences for three Texas killers Wednesday because of problems with instructions given jurors who were deciding between life in prison and death.

In the case of LaRoyce Lathair Smith, the court set aside the death penalty for the second time. It also reversed death sentences for Brent Ray Brewer and Jalil Abdul-Kabir.

The cases all stem from jury instructions that Texas hasn't used since 1991. Under those rules, courts have found that jurors were not allowed to give sufficient weight to factors that might cause them to impose a life sentence instead of death.

The three 5-4 rulings had the same lineup of justices, with Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter and John Paul Stevens forming the majority.

''When the jury is not permitted to give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence...the sentencing process is fatally flawed,'' Stevens wrote in Abdul-Kabir's case

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.

Roberts took aim at his colleagues in the majority in dissents he wrote in the Abdul-Kabir and Brewer cases. The court should have deferred to lower court rulings against the defendants because there was no clearly established federal law that judges could have followed to grant relief.

''Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.

Smith was sentenced to die for the murder of Jennifer Soto, a former coworker at a Taco Bell who was stabbed and shot in a failed robbery.

In 2004, the justices overturned Smith's sentence because jurors were not allowed to consider sufficiently the abuse and neglect that Smith had suffered as a child.

The Texas Court of Criminal Appeals reinstated the death penalty, however, saying any errors involving the jury instructions were harmless.

Abdul-Kabir, also known as Ted Calvin Cole, was convicted in 1988 of using a dog leash to strangle Raymond Richardson, 66, during a $20 robbery at his San Angelo home. Abdul-Kabir's lawyers contend the jury that condemned him had no way to take into account the mistreatment and abandonment that contributed to his violent adult behavior.

The same sentencing problems applied to Brewer, convicted of fatally stabbing 66-year-old Robert Laminack, who was attacked in 1990 outside his Amarillo flooring business and robbed of $140. Brewer was abused as a child and suffered from mental illness, factors his jurors weren't allowed to consider, according to his petition.

The 5th U.S. Circuit Court of Appeals had upheld the death penalty for Brewer and Abdul-Kabir.

Forty-seven inmates on Texas' death row were sentenced under the rules that the state abandoned in 1991.

The cases are Smith v. Texas, 05-11304, Brewer v. Quarterman, 05-11287, and Abdul-Kabir v. Quarterman, 05-11284.

April 25, 2007 in Perry, Michael | Permalink | TrackBack (0)

Don't read it

You won't want to read the second installment of vol. 52 the Villanova Law Review that has just become available online and in print.  Don't even consider glancing at the intellectual product of Villanova's first annual Scarpa Conference on Law, Politics, and Culture, the topic of which was "From John Paul II to Benedict XVI: Continuing the New Evangelization of Law, Politics, and Culture."  Please don't let your curiosity lead you to our very own Rick Garnett's "Church, State, and the Practice of Love" or Amy Uelmen's ""Reconciling Evangelization and Dialogue Through Love of Neighbor."  And since no one will be tempted by Cardinal Dulles's keynote address "The Indirect Mission of the Church to Politics," there's no risking in mentioning it here.

And while I'm at it, please don't mark your calendar for the next Scarpa Conference on Law, Politics, and Culture that will be held at Villanova on October 16, 2007.  You certainly won't want to hear Justice Scalia, or Paul Kahn (Yale), or James Stoner (Louisiana State), or Jean Porter (Notre Dame), or Jeremy Waldron (NYU) on "The Judicial Office in Our Constitutional Democracy: Avoiding Dogmatism on a Disputed Question."          

April 25, 2007 in Brennan, Patrick | Permalink | TrackBack (0)

Getting Serious About Poverty

Today the Center for American Progress released a report titled "From Poverty to Prosperity: A National Strategy to Cut Poverty in Half."  Noting that one in eight Americans lives in poverty today (defined as a family of four living on less than $19,971), the Center estimates that the rate can be halved through a combination of policy steps, including a higher minimum wage, expanded Earned Income Tax Credit, guaranteed child care, and housing vouchers to deconcentrate poverty.  The combined cost of the recommendations is estimated at $90 billion per year.  The cost (in 2008) of President Bush's tax cuts for households making more than $200,000 per year is estimated to be $100 billion.  And the cost of our war of choice in Iraq?  Don't get me started.

April 25, 2007 in Vischer, Rob | Permalink | TrackBack (0)

The Language of Abortion

Predictably, the blog Get Religion has excellent coverage of the battle over the language of abortion.

April 25, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Too Many Catholics on the Court?

New York Times
April 25, 2007

On the Record

The Supreme Court’s Catholic Majority

The five justices who turned the Supreme Court around last week and upheld the ban on “partial birth abortion” had much in common.

All are men. All were nominated by conservative Republican presidents. And, it was widely noted, all are Roman Catholics.

Did their religion matter? Should it even be discussed? In the wake of the 5-4 ruling in Gonzales v. Carhart, these questions have been raised and debated in venues from the blog of the American Constitution Society (where Geoffrey R. Stone, a constitutional law professor, said the justices’ religious identity was “too obvious, and too telling, to ignore,”) to ABC’s “The View,” (where Rosie O'Donnell declared, "How about separation of church and state in America?" according to ABC News.)

The pushback from conservative Catholics was immediate - even pre-emptive. Bill Donahue, president of the Catholic League for Religious and Civil Rights, declared, “We need more, not fewer, Catholics on the Supreme Court.” On his Web site, the Rev. Richard John Neuhaus, an influential conservative, wrote last week, “I expect it is on the minds of many, but so far there has been only marginal public comment on the fact that all five in the Carhart majority are Catholics.” He added, “What can one say? Know-Nothings of the world unite?”

This discussion was probably inevitable: Catholics, for the first time, hold a majority of seats on the Supreme Court, after decades when there were, typically, only one or maybe two “Catholic seats” on the bench. Two of the Catholic justices, Chief Justice John Roberts and Justice Samuel Alito, were confirmed only in the past two years, in an ideologically charged environment in which all sides were eager for clues on how they might rule on abortion rights and other hot-button issues.

With so much unknown about their legal leanings, their religion became a proxy for both sides -- a source of reassurances for conservatives, and of anxiety for liberals. But the nominees’ supporters discouraged any questions about the role of their faith in the confirmation hearings, essentially arguing that it would amount to an unacceptable “religious test” for public office.

Now, with an actual opinion on abortion from the new court in hand, the debate has moved from the theoretical to the concrete. Some legal scholars say the Catholicism of the five justices, in and of itself, means less than their conservatism. Yes, the Church hierarchy denounces legalized abortion, but many Catholics in public life, over the years, have drawn a bright line between their private beliefs and their public duties (memorably, John F. Kennedy in 1960, and Mario Cuomo in 1984).

Scholars also note that Justice William Brennan, who was carefully appointed to the “Catholic seat” by President Dwight Eisenhower, turned out to be one of the key supporters of the constitutional right to abortion. “There can be no greater proponent of a pro-choice vision of the 14th amendment than William Brennan,” said David Yalof, an associate professor of political science at the University of Connecticut and a scholar of the judicial selection process.

John Green, a senior fellow at the Pew Forum on Religion and Public Life, said that the existence of a Catholic majority on the court should not be minimized as a historical marker of “just how much the nation has changed over the last century.” But, he added, “When it comes to predicting what they will do, it’s important to note that this is a Republican Catholic majority.”

In fact, American Catholics are very much a two-party religion. The Catholic vote has typically split in recent presidential elections, and Catholic elected officials fill the top ranks of both parties. Speaker Nancy Pelosi, Senator Edward M. Kennedy, Senator Patrick Leahy and the 2004 presidential nominee, Senator John Kerry, are all Catholics - and Democrats who support abortion rights.

Ralph Neas, the president of People for the American Way, has been a fierce opponent of many of the Bush Administration’s judicial nominees - and is also a Catholic. “My problem with the right wing bloc on the court is their view of the Constitution, not their religion,” Mr. Neas said in an interview. “I am absolutely certain their views do not represent all American Catholics.”

In short, any discussion of the new Catholic majority on the Supreme Court only underscores the complicated, subtle role of religion in the public square - nearly 47 years after Kennedy tried to reassure an anxious country that it was safe to elect a Catholic. “I do not speak for my church on public matters, and the church does not speak for me,” Kennedy declared in September 1960, when American Catholics were on the brink of their political ascendancy, and the questions they faced were more raw, but also more simple.

April 25, 2007 in Perry, Michael | Permalink | TrackBack (0)

Urgent Notice: Please Help!

I assume some MOJ readers are Republicans--and that some of them have some clout with the Bush Administration.  Would those of you who fit that profile please contact your contacts and urge them to do something about the unholy folly descibed below.  This too, after all, is a pro-life issue.

New York Times
April 25, 2007

OSHA Leaves Worker Safety in Hands of Industry

WASHINGTON, April 24 — Seven years ago, a Missouri doctor discovered a troubling pattern at a microwave popcorn plant in the town of Jasper. After an additive was modified to produce a more buttery taste, nine workers came down with a rare, life-threatening disease that was ravaging their lungs.

Puzzled Missouri health authorities turned to two federal agencies in Washington. Scientists at the National Institute for Occupational Safety and Health, which investigates the causes of workplace health problems, moved quickly to examine patients, inspect factories and run tests. Within months, they concluded that the workers became ill after exposure to diacetyl, a food-flavoring agent.

But the Occupational Safety and Health Administration, charged with overseeing workplace safety, reacted with far less urgency. It did not step up plant inspections or mandate safety standards for businesses, even as more workers became ill.

On Tuesday, the top official at the agency told lawmakers at a Congressional hearing that it would prepare a safety bulletin and plan to inspect a few dozen of the thousands of food plants that use the additive.

That response reflects OSHA’s practices under the Bush administration, which vowed to limit new rules and roll back what it considered cumbersome regulations that imposed unnecessary costs on businesses and consumers. Across Washington, political appointees — often former officials of the industries they now oversee — have eased regulations or weakened enforcement of rules on issues like driving hours for truckers, logging in forests and corporate mergers.

Since George W. Bush became president, OSHA has issued the fewest significant standards in its history, public health experts say. It has imposed only one major safety rule. The only significant health standard it issued was ordered by a federal court.

The agency has killed dozens of existing and proposed regulations and delayed adopting others. For example, OSHA has repeatedly identified silica dust, which can cause lung cancer, and construction site noise as health hazards that warrant new safeguards for nearly three million workers, but it has yet to require them.

“The people at OSHA have no interest in running a regulatory agency,” said Dr. David Michaels, an occupational health expert at George Washington University who has written extensively about workplace safety. “If they ever knew how to issue regulations, they’ve forgotten. The concern about protecting workers has gone out the window.”

Agency officials defend their performance, saying that workplace deaths and injuries have declined during their tenure. They have been considering new standards and revising outdated ones that were unduly burdensome on businesses, they said, adding that they have moved cautiously on new rules because those require extensive scientific and economic analysis.

“By the time the Bush administration is done — we have a good record already — we will have a better record,” said Edwin G. Foulke Jr., the agency’s head, in a recent interview.

On diacetyl, Mr. Foulke said “the science is murky” on whether the additive causes bronchiolitis obliterans, the disease that has been called “popcorn worker’s lung.” That claim is echoed by some industry officials, but a number of leading scientists and doctors agree with scientists at the national occupational safety institute that there is strong evidence linking the additive to the illness.

Without an OSHA standard, which would establish the permissible level of exposure for workers, companies can set any limit of exposure they want.

Instead of regulations, Mr. Foulke and top officials at other agencies favor a “voluntary compliance strategy,” reaching agreements with industry associations and companies to police themselves.

Administration officials say such programs are less costly, allowing companies to hire more workers and keep consumer prices down. The number of voluntary agreements has grown in recent years, but they cover a fraction of the seven million work sites that OSHA oversees, or less than 1 percent of the work force. Sixty-one food plants out of the tens of thousands across the country participate; industry representatives say other businesses are taking steps to protect workers on their own.

Critics say the voluntary programs tend to have little focus on specific hazards and no enforcement power. Because only companies with strong safety records are eligible, they argue, the programs do not force less-conscientious businesses to improve their workplaces. A 2004 study by the Government Accountability Office found some promising results from such programs, but recommended against expanding them until their effectiveness could be assessed.

“OSHA has been focusing on the best companies in their voluntary protection program while doing nothing in the area of standard setting,” said Peg Seminario, the director of occupational safety and health at the A.F.L.-C.I.O. “They’ve simply gotten out of the standard-setting business in favor of industry partnerships that have no teeth.”

While labor organizations and public health experts argue that the agency has been lax in recent years, some industries have applauded its efforts. Construction companies, for example, are pleased that OSHA recently decided to relax the standards for handling explosives.

The agency had long been the target of businesses that criticized its rules as arbitrary, costly and confusing. Three of the biggest industries regulated by OSHA — transportation, agribusiness and construction — have given more than $630 million in political campaign contributions since 2000, with nearly three-quarters of that money going to Republicans. The Bush administration has promised to address their concerns.

Change at OSHA

“We’re also going to bring a transparency to the regulatory jungle that is unprecedented in the federal government,” Labor Secretary Elaine L. Chao told business owners in a speech on June 2002. “There are more words in the Federal Register describing OSHA regulations than there are words in the Bible. They’re a lot less inspired to read and a lot harder to understand. This is not fair.”

Until recently, Congress has provided no significant oversight of OSHA. With Democrats now back in control, House and Senate committees are holding hearings this week.

Among those who testified Tuesday was Eric Peoples, a former worker at the popcorn plant in Jasper, a small town 125 miles south of Kansas City. Once healthy, the 35-year-old Mr. Peoples has been told by doctors that he will need a double-lung transplant. Far from Washington, he finds the debate over the calculus of regulation — the costs to companies and consumers of upgrading workplaces versus the possible health benefits to workers — baffling.

“I can’t understand what it would take to get them to pass rules to make it safer to handle this stuff,” Mr. Peoples said, referring to diacetyl. “Something needs to be done.”

The Occupational Safety and Health Administration was created under President Richard M. Nixon in 1970 after Congressional hearings exposed dangerous workplace conditions. The agency was to set and enforce safety standards as well as detect health hazards before they could take a toll on workers. Since the agency’s creation, deaths and injuries on the job have steadily declined. Regulators have taken credit for much of that trend, though experts also cite pressure from insurers and lawsuits. Government records show that in 2005, more than 6,800 workplace-related deaths occurred, along with 4.2 million injuries and illnesses. OSHA officials say that since 2001, the fatality rate has declined by 7 percent and the injury rate by 19 percent.

Labor leaders and health experts say those numbers significantly undercount the problem, in part because the Bush administration has reduced the categories of recognized injuries and because many dangerous jobs are now performed by undocumented workers who do not report problems.

In one of his first acts in office, President Bush signed legislation repealing one of OSHA’s most-debated accomplishments during the Clinton administration, an ergonomics standard intended to reduce injuries to factory, construction and office workers from repetitive motions and lifting. Business groups and manufacturers had lobbied against the measure, saying it would cost $100 billion to carry out.

By the end of 2001, OSHA had withdrawn more than a dozen proposed regulations. The agency, though, soon identified several safety priorities: rules on the hazards posed by dust from silica, used as a blasting agent, and noise from construction sites, which was causing a growing number of workers to suffer hearing loss. The agency has yet to produce either standard, though OSHA officials say they are working on them.

Mr. Foulke, the OSHA chief, has a history of opposing regulations produced by the agency he now leads. He has described himself as a “true Ronald Reagan Republican” who “firmly believes in limited government.” Before coming to Washington last year, Mr. Foulke, a former Republican Party state chairman in South Carolina and top political fund-raiser, worked in Greenville, S.C., for a law firm that advises companies on how to avoid union organizing. Representing the United States Chamber of Commerce, he had testified before Congress several times to promote voluntary OSHA compliance programs. He also opposed the ergonomics standards.

And as a member in the 1990s of an independent agency that reviews OSHA citations, he led a successful effort to weaken the agency’s enforcement authority.

Early in his tenure at OSHA, Mr. Foulke delivered a speech called “Adults Do the Darndest Things,” which attributed many injuries to worker carelessness. Large posters of workers’ making dangerous errors, like erecting a tall ladder close to an overhead wire, were displayed around him.

“Kids don’t always know what their parents do all day at work, but they instinctively understand the importance of them working safely,” he told the audience, which included children who had won a safety-poster contest. “In contrast, adults could stand to learn a thing or two. Looking at the posters, I was reminded of a couple examples of safety and health bloopers that are both humorous and horrible.”

A Pattern of Illness

Soon after Eric Peoples began working at the Jasper popcorn plant in 1997, he was thrilled to get a promotion: from the assembly line, which paid $6 to $7 an hour, to the mixing room, where he got more than $11 an hour to prepare ingredients.

Ten months later, Mr. Peoples recalled in a recent interview, he came down with a fever and chills. Doctors first said that Mr. Peoples, then 27, had pneumonia. When he did not improve, he saw a specialist who treated him for asthma. Still suffering from breathing problems, Mr. Peoples was hospitalized in St. Louis. After days of testing, doctors diagnosed bronchiolitis obliterans.

“My lung capacity had dropped to 18 percent,” Mr. Peoples said. He was told that there was no cure for the often-fatal disease and that he would likely need a double lung transplant to survive.

Some of his co-workers had similar health problems. A local lawyer whose mother had fallen ill showed the medical records of several workers to Dr. Allen Parmet, a former T.W.A. medical director who specializes in occupational hazards.

“It took me about 15 or 20 minutes to see there was a pattern,” said Dr. Parmet, who in his previous two decades in medicine had seen only three other cases of bronchiolitis obliterans. He contacted the Missouri Department of Health, which then notified the agencies in Washington.

The Missouri officials noted that in addition to nine sick workers identified by Dr. Parmet, 20 to 30 current and retired workers had similar symptoms. All had been exposed to vapors from diacetyl, a compound found naturally in cheese, butter, milk and other foods. It is added for the buttery taste in microwave popcorn and widely used as a flavoring agent in other foods, like snacks and pastries.

Although Dr. Parmet’s letter was the first that Washington learned of a possible problem with diacetyl, some companies had been aware of the health hazards. In late 1996, the Flavor and Extract Manufacturers Association heard from a company that a flavoring plant employee had developed bronchiolitis obliterans. Three years earlier, BASF, the German chemical maker, had found in animal studies that diacetyl caused severe respiratory problems.

After scientists from the national occupational safety institute visited the Jasper factory and examined the injured workers, the agency issued a bulletin in September 2001 saying “a work-related cause of lung disease” had occurred there. In December 2003, the agency issued an alert to more than 4,000 businesses, with tens of thousands of workers, that suggested safeguards.

OSHA’s response was more limited. The agency sent an inspector to the Jasper plant, but he did not test the air, saying the company’s insurers had done an environmental sampling four years earlier. He concluded that the plant was in compliance with existing rules and closed the case.

Sixteen months later, a lawyer for ill workers filed a complaint with the agency. OSHA conducted a 40-minute inspection, but said it could do nothing more because there was no safety standard that established what level of diacetyl was acceptable. Since the first outbreak, OSHA has inspected three food and flavoring plants for links to popcorn worker’s lung, and issued one citation, according to records provided to public health experts at George Washington University and the United Food and Commercial Workers International Union under the Freedom of Information Act.

Other workers have developed symptoms of the lung disease. Keith Campbell had worked at a Conagra microwave popcorn factory in Marion, Ohio, for two years when he got sick. He was then 44, but his doctors told him he had the lung capacity of an 80-year-old, Mr. Campbell said in an interview. He has extreme difficulty breathing, particularly in cold weather. “It’s affected my entire life,” he said.

Kenneth B. McClain, a lawyer at the Missouri firm that has represented Mr. Peoples and Mr. Campbell, said he had tried or settled more than 100 cases involving diacetyl and other flavorings and that more than 500 were still awaiting resolution in Illinois, Indiana, Iowa, Maryland, Missouri and Ohio.

At a two-week trial in March 2004, lawyers for the makers of diacetyl products — International Flavors and Fragrances and its subsidiary, Bush Boake Allen — maintained that the additive did not cause Mr. Peoples’s illness and that, in any event, the popcorn company had mishandled the substance. Jurors awarded Mr. Peoples $20 million. His case, like Mr. Campbell’s, was later settled for an undisclosed amount.

Melissa I. Sachs, a spokeswoman at International Flavors and Fragrances, based in New York, declined to comment on the cases. According to its latest annual report, the company has been sued by more than 150 workers in four states.

Health experts have not raised alarms about diacetyl vapors that are released when consumers make microwave popcorn. But they note that there is little science on the issue, and the Environmental Protection Agency has declined to make public the results of its studies.

There are no estimates of the costs of upgrading all plants that use the food additive to protect workers better. Some microwave popcorn companies, including the Gilster-Mary Lee Corporation plant in Jasper, have spent millions of dollars on better ventilation, respirators and other equipment.

The Official Response

Two industry groups — the Flavor and Extract Manufacturers Association and the Popcorn Board — have also become involved in resolving workplace problems, particularly as the lawsuits have mounted. The association has not expressed opposition to an OSHA standard; its officials say it is working with California regulators to develop one there.

But John Hallagan, the association’s general counsel, says the group is working with OSHA to reach a voluntary compliance agreement.

“OSHA is doing the right things in addressing flavor-related health and safety issues,” Mr. Hallagan said in a recent e-mail message.

He said the agency had met with industry and health officials and had posted on a Web site possible health hazards associated with some flavorings.

In September 2002, OSHA’s Kansas City office entered into an alliance with the Popcorn Board, which represents popcorn processors, to try to address safety problems. But that arrangement soon ended.

Last July, the United Food and Commercial Workers International Union and the International Brotherhood of Teamsters petitioned OSHA for an emergency temporary standard for diacetyl. Urging action, 42 doctors and scientists from institutions including Harvard, Yale, the Massachusetts Institute of Technology and Johns Hopkins, wrote to Ms. Chao, who oversees OSHA.

The agency responded by saying it was preparing a safety bulletin and would be monitoring diacetyl hazards at a few dozen popcorn plants, but not at the thousands of other food factories that use the additive. That has frustrated public health experts like Dr. Michaels, the George Washington University epidemiologist.

“Here you have one federal agency, Niosh, doing a great job exploring the science behind a problem and a second agency, OSHA, which is supposed to be moving forward with enforcement and standard setting, and they are not,” he said.

April 25, 2007 | Permalink | TrackBack (0)