Over the past dozen years, the U.S. Environmental Protection Agency (EPA) has been conducting extensive studies on the toxicity of formaldehyde, a chemical that has been used for decades in everything from adhesives and life-saving medicines to construction, aerospace, and transportation. The American Chemistry Council (ACC) considers formaldehyde to be a “basic building-block chemical, essential to an estimated $145 billion of the U.S. gross national product.”
Like many government-sponsored scientific research projects, the investigation into formaldehyde has had many twists and turns, as well as conflicting findings from studies by the EPA and National Academy of Sciences. In June of this year, however, the EPA issued its “trump card,” the definitive word on formaldehyde in the 12th Report on Carcinogens: formaldehyde and five other chemicals were added to the government’s list of carcinogens.
News agencies fromThe New York Timesto theToday Showfeatured the report as a top news item. One group that certainly didn’t miss the EPA’s announcement was toxic tort lawyers.
Legal Concerns
For the adhesives and sealants industry, the EPA’s report could make formaldehyde the focal point of a wave of toxic tort cases based on occupational or consumer exposure to the chemical. Although the EPA report stated, “Many factors, including the amount and duration of exposures, and an individual’s susceptibility to a substance, affect whether a person will develop cancer,” the conclusion is clear: Formaldehyde is a carcinogen. The EPA’s National Toxicology Program released in June noted that “cleaning agents, glues and adhesives may contain formaldehyde.”Toxic torts are lawsuits filed by persons claiming that exposures in occupational or household environments caused an illness. (The illness is usually, but not always, some type of cancer.) The most famous-or infamous, depending on one’s point of view-toxic tort lawsuits have involved exposures to asbestos, silica and benzene. Silica lawsuits have diminished due to great judicial scrutiny of the alleged illnesses involved in those lawsuits. The asbestos lawsuits have peaked, although the few cases being filed now are of a greater individual value than those filed by the mass of unimpaired plaintiffs a few years ago. The benzene lawsuits never reached the sheer numbers of asbestos and silica lawsuits and, of late, plaintiffs are losing the cases that are tried.
However, plaintiffs’ attorneys have been closely following the developments and studies regarding formaldehyde, in part because the major manufacturers and users of formaldehyde are solvent-and numerous. In addition to adhesives, formaldehyde is a ubiquitous component in products such as cosmetics and hair care products. Many industries, such as compressed board and funeral homes, manufacture or use formaldehyde, and were highlighted by the EPA. From the plaintiffs’ lawyers’ perspective, a solvent defendant who sold or used a national product that has an alleged connection to a serious form of cancer is the best possible scenario. The EPA’s ruling strengthens their resolve.
Focus on Formaldehyde
Awareness and concern regarding formaldehyde has been growing over the past several years. First, the chemical’s potential harm expanded from a very rare nasal cancer to a much more common form of leukemia (acute myelogenous leukemia, or AML); the EPA determined that formaldehyde should be considered a cause of AML. Approximately 30,000 leukemia cases are diagnosed each year in the U.S., and approximately half are AML. AML is one of the most difficult forms of leukemia to treat, and a bone marrow transplant is the only known cure. The World Health Organization’s International Agency for Research on Cancer’s confirmed the connection between formaldehyde and AML.The EPA’s listing of formaldehyde in its 12th Report on Carcinogens is likely the tipping point for the chemical and the development of new federal regulations regarding its use.
Industry Effects
Industries have consistently been ahead of the curve in terms of formaldehyde awareness and potential problems. Organizations such as the ACC and the Formaldehyde Council stay informed regarding the latest studies on the chemical and findings, make recommendations, and publish best management practices to protect their members and users of the chemical.The EPA’s report, which indicated that formaldehyde can cause “myeloid leukemia, and rare cancers including sinonasal and nasopharyngeal cancer,” should elevate the awareness of industries that use the chemical. It is better to think about the risks and initiate planning than to try to deny the potential problems. The adhesives and sealants industry can take the following steps now to prepare for potential formaldehyde litigation:
- Keep informed regarding industry practices and recommendations regarding the safe handling and use of formaldehyde.
- Keep your employees informed as you become informed. Don’t let their knowledge be limited to the popular press or what their friends or relatives tell them. Nothing defeats rumors like facts and science.
- Maintain your documents and records, including electronic information, in an accessible and producible manner.
- Evaluate your litigation risks. Do you have insurance coverage? Are you owed indemnity by someone else (e.g., the seller of the product at issue)?
- Plan ahead for your first (or next) lawsuit. What legal counsel will you retain? Who should be your company witnesses?
- Continue to follow the EPA’s actions on its report, as well as discussions from the ACC and Formaldehyde Council.
Be Prepared
Industries that use formaldehyde and may find themselves in a future fight should take prudent steps now to protect themselves. In toxic tort lawsuits, coordinating the discovery process, leveraging efficiencies and establishing a base level of facts is critical to coordinating the industry’s response.For additional information, contact the author via phone at (713) 547-2039 or email stan.perry@haynesboone.com.
