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# Legislative Bulletin.................................................September 26, 2007

**Contents:**

**H.R. 2693**---Popcorn Workers Lung Disease Prevention Act

H.R. 2693---Popcorn Workers Lung Disease Prevention Act

(*Rep. Woolsey, D-CA*)

**[Order of Business]{.underline}**: The bill is scheduled to be
considered on Wednesday, September 26^th^, likely subject to a
structured rule. The RSC will summarize any amendments made in order
under the rule in a separate RSC document.

**[Summary]{.underline}**: H.R. 2693 would direct the U.S. Department of
Labor (via the Occupational Safety and Health Administration---OSHA) to
set standards for the maximum exposure to diacetyl, a food additive used
to simulate butter flavor---usually on popcorn. Specifically the bill:

-   Requires the Secretary of Labor to issue an [interim]{.underline}
    final standard regulating worker exposure to diacetyl within 90 days
    of this bill's enactment and to apply such standard to the flavor
    manufacturers, as well as all microwave popcorn production and
    packaging establishments, that use diacetyl.

-   Requires that the standard provide no less protection than do the
    guidelines issued in 2003 by the National Institute of Occupational
    Safety and Health (NIOSH, a division of the Centers for Disease
    Control), in NIOSH publication 2004-110. (See "Additional
    Background" section below.)

-   Requires that the standard include engineering, work-practice
    controls, and respiratory protections to minimize exposure to
    diacetyl.

-   Requires the standard direct employers to each develop a written
    exposure control plan, detailing the specific measures the employer
    will take to minimize employee exposure to diacetyl. Each employer
    plan would have to be re-evaluated at least biannually or whenever
    medical surveillance indicates abnormal pulmonary function in
    employees exposed to diacetyl.

-   Requires the standard to also include requirements for: airborne
    exposure assessments, medical surveillance for workers, referrals
    for "prompt" (undefined) medical evaluation, protective equipment
    and clothing, and employer-provided written safety and health
    information and training to employees.

-   Provides that the standard would become effective immediately, have
    the legal effect of an OSHA standard, and remain in effect until a
    final standard is promulgated by OSHA.

-   Directs OSHA to issue a [final]{.underline} diacetyl standard within
    two years of this bill's enactment. The final standard would have to
    contain the worker protection provisions of the interim final
    standard, including a short-term exposure limit, and a maximum
    exposure limit that does not exceed the lowest feasible level.

-   Requires NIOSH to study and report to OSHA on the exposure hazards
    of possible flavor substitutes that are closely related to diacetyl
    in microwave popcorn production, and then establish recommended
    exposure limits for those flavoring chemicals found to be hazardous.

The bill also contains several findings, including:

-   "There is compelling evidence that diacetyl presents a grave danger
    and significant risk of life-threatening illness to exposed
    employees. Workers exposed to diacetyl have developed, among other
    conditions, a debilitating lung disease known as bronchiolitis
    obliterans; and

-   "An OSHA standard is urgently needed to protect workers exposed to
    diacetyl from bronchiolitis obliterans and other debilitating
    conditions."

**[Additional Background]{.underline}**: OSHA announced this week that
it is taking the following three actions that will address concerns
regarding diacetyl exposure in the workplace: 

1.  Initiating a [rulemaking under section 6(b) of the Occupational
    Safety and Health Act.]{.underline}

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1.  Issuing a [Safety and Health Information Bulletin
    (SHIB)]{.underline}.

2.  Providing [Hazard Communication Guidance]{.underline}.

These actions build upon the National Emphasis Program that OSHA
announced in April 2007 to focus on the health hazards of microwave
popcorn butter flavoring containing diacetyl.

The SHIB provides information on health effects for workers exposed to
butter flavorings in microwave popcorn processing plants, information on
controls that may be used to reduce exposures to butter flavorings, and
information on applicable OSHA standards. 

The Hazard Communication Guidance alerts employers, workers,
manufacturers, and importers about new information related to the health
hazards associated with diacetyl and food flavorings containing diacetyl
and provides guidance on how to develop material safety data sheets and
hazard warning labels to be in compliance with OSHA's Hazard
Communication Standard.

OSHA noted in a press release that, "Under the Occupational Safety and
Health Act of 1970, employers are responsible for providing safe and
healthful workplaces for their workers.  OSHA's role is to assure the
safety and health of America's working men and women by setting and
enforcing standards; providing training, outreach and education;
establishing partnerships; and encouraging continual process improvement
in workplace safety and health. For more information, visit
[www.osha.gov](http://www.osha.gov/)."

For more information on diacetyl and what the Labor Department is doing
about it, please visit this webpage:
<http://www.osha.gov/dts/chemicalsampling/data/CH_231710.html>.

To read the NIOSH recommendations from December 2003, please visit this
webpage: <http://www.cdc.gov/niosh/docs/2004-110/>.

For more information on bronchiolitis obliterans, please visit this
webpage:
<http://www.mayoclinic.com/health/bronchiolitis-obliterans/AN00307>.

**[Possible Conservative Concerns]{.underline}**: Some conservatives may
be concerned that this legislation would circumvent the normal OSHA
process of testing and evaluating potentially dangerous chemicals, a
process which is [currently
underway](http://www.osha.gov/dts/chemicalsampling/data/CH_231710.html).
Some conservatives may also be concerned at Congress making scientific
determinations of singular causation when no such definitive evidence
exists. (Even the NIOSH report cited above admits such inconclusiveness
of evidence.)

**[RSC Bonus Facts]{.underline}**: In March 2004, former microwave
popcorn plant employee Eric Peoples, of Joplin, Missouri, was awarded
\$20 million for permanent lung-injuries sustained while on the job.
(<http://www.cbsnews.com/stories/2004/03/16/health/main606532.shtml>) On
July 19, 2005, jurors awarded \$2.7 million to another popcorn plant
worker in Missouri for his claim of diacetyl-induced respiratory
problems.
(<http://sec.edgar-online.com/2005/08/05/0000051253-05-000020/Section10.asp>)

On July 26, 2006, the International Brotherhood of Teamsters and the
United Food and Commercial Workers petitioned OSHA to promulgate an
emergency temporary standard to protect workers from the deleterious
health effects of inhaling diacetyl vapors.
([http://defendingscience.org/upload/Union%20Petition%20to%20CHAO%20on%20Diacetyl%20Signed.pdf](http://defendingscience.org/upload/Union Petition to CHAO on Diacetyl Signed.pdf))

**[Committee Action]{.underline}**: On June 16, 2007, the bill was
referred to the Education and Labor Committee, which, one week later,
marked up the bill and ordered it reported to the full House by voice
vote.

**[Administration Position]{.underline}**: The Department of Labor sent
a letter to Education and Labor Chairman George Miller, expressing
strong opposition to the legislation, for much the same reasons cited
above in "Possible Conservative Concerns." As noted above in the
"Additional Background" section, the Administration has already taken
numerous steps to investigate safety concerns with diacetyl and to
eventually set workplace exposure standards.

**[Cost to Taxpayers]{.underline}**: CBO writes that, "implementing H.R.
2693 would cost approximately \$1 million in 2008, assuming
appropriation of the necessary amounts. CBO assumes these funds would be
used primarily to fund the NIOSH study required by the bill. Costs in
2009 would not be significant. Enacting the bill would not affect
revenues or direct spending."

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: CBO confirms that the required
interim standard and the final standard would constitute private-sector
mandates on those who manufacturer or handle diacetyl in a commercial
context.

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}**: The Education and
Labor Committee, in [House Report
110-239](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr239)),
asserts that, "H.R. 2693 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in clause
9(d), 9(e) or 9(f) of rule XXI."

**[Constitutional Authority]{.underline}**: The Education and Labor
Committee, in [House Report
110-239](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr239)),
cites constitutional authority in Article I, Section 8, Clause 3 (the
congressional power to regulate interstate commerce).

**[Outside Organizations]{.underline}**: The following organizations
have expressed a public position on H.R. 2693:

[Opposing the bill]{.underline}:

-   Associated Builders and Contractors

-   Mason Contractors Association of America

-   National Association of Convenience Stores

-   National Association of Home Builders

-   National Association of Manufacturers

-   National Federation of Independent Business

-   Printing Industries of America

-   U.S. Chamber of Commerce

[Supporting the bill]{.underline}:

-   American College of Environmental and Occupational Medicine

-   American Industrial Hygiene Association

-   American Society of Safety Engineers

-   AFL-CIO

-   Flavor and Extract Manufacturers Association

-   International Brotherhood of Teamsters

-   United Food and Commercial Workers

**[RSC Staff Contact]{.underline}**: Paul S. Teller,
<paul.teller@mail.house.gov>, (202) 226-9718