BILL ANALYSIS
SB 456
Page 1
Date of Hearing: July 3, 2007
ASSEMBLY COMMITTEE ON HEALTH
Mervyn Dymally, Chair
SB 456 (Simitian) - As Amended: April 9, 2007
SENATE VOTE : 22-18
SUBJECT: Diacetyl.
SUMMARY : Prohibits the manufacturing, processing, or
distributing in commerce a product containing diacetyl.
Specifically this bill :
1)Prohibits, on and after June 1, 2008, a person from
manufacturing, processing, or distributing in commerce a
product containing diacetyl.
2)Exempts naturally-occurring diacetyl from the prohibition.
3)Authorizes the director of the Office of Environmental Health
Hazards Assessment (OEHHA), with the concurrence of the
Secretary of the California Environmental Protection Agency
(Cal/EPA), to grant a temporary waiver from the prohibition of
two years with a renewal period of two additional years.
States that a waiver may be granted if:
a) The manufacturer submits a petition requesting a
deferral of the prohibition; and,
b) The director of OEHHA makes a written finding that:
i) The prohibition would cause substantial economic
hardship to users of diacetyl;
ii) There is no feasible alternative to diacetyl;
and;
iii) There would be appropriate mitigation to the
greatest extent practicable.
4)Makes related findings and declarations.
EXISTING LAW :
1)Authorizes, under the federal Toxic Substances Control Act of
1976 (TSCA), the U.S. Environmental Protection Agency (EPA) to
regulate the manufacture, use, distribution in commerce, and
disposal of chemical substances produced or imported into the
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U.S.
2)Authorizes, under the U.S. Federal Food, Drug, and Cosmetic
Act, the Food and Drug Administration (FDA) to oversee the
safety of food, drugs, and cosmetics.
3)Creates, under the federal Occupational Safety and Health
(OSH) Act of 1970, the Occupational Safety and Health
Administration (OSHA) to "assure safe and healthful working
conditions for working men and women," and authorizes states
to create their own safety and health programs as long as
those programs are at least as effective as the federal
program.
4)Establishes and requires, under the California Labor Code, the
California Occupational Safety and Health Administration
Standards Board (Cal/OSHA) to adopt occupational safety and
health standards that are at least as effective as federal
standards promulgated under the Occupational Safety and Health
Act of 1970.
5)Prohibits under the California Hazardous Substances Act, the
manufacture, production, preparation, compounding, packing,
selling, offering for sale, or keeping for sale within the
State of California of a misbranded hazardous substance or
banned hazardous substance.
FISCAL EFFECT : According to the Senate Appropriations
Committee, costs associated with deferral reviews and approvals
would be about $175,000 annually for up to four years. Actual
costs to OEHHA will depend on how many petitions are filed.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill will
protect Californians from exposure to a known toxic chemical.
Exposure to diacetyl vapors has been associated with
constrictive bronchiolitis obliterans (also called "popcorn
worker lung"), a severe and potentially fatal lung disease
that causes inflammation and scarring in the small airways of
the lungs which leads to severe impairment of lung function.
Most cases do not respond to medical treatment and can only be
cured by lung transplant. The author states that although
efforts to establish safe exposure levels are ongoing, no safe
exposure level has been determined by either state or federal
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governmental entities by which mitigation measures can be
developed and implemented. Thus to prevent further harm, the
author believes that diacetyl should be banned.
2)BACKGROUND . Diacetyl is an artificial flavoring that is mixed
with other ingredients to produce a butter-like flavor in food
products. It is an additive in hundreds of food products such
as microwave popcorn, pancake syrup, cakes, candies, and
frozen foods. Diacetyl can also be produced as a byproduct of
many natural processes and is present in coffee, wine, beer,
and other such products. However, ingestion of naturally
occurring diacetyl has not been proven to be a health threat.
3)DIACETYL STUDIES . In 2000, the National Institute for
Occupational Safety and Health (NIOSH) did a study
investigating the occurrence of fixed obstructive lung disease
in workers at six microwave popcorn plants and through rat
experiments. Rats developed similar airway damage with
inhalation of vapors of pure diacetyl. These findings
implicated butter-flavoring chemicals as a likely etiologic
agent for obstructive lung disease in workers. In 2002, a New
England Journal of Medicine study of 117 popcorn factory
workers concluded that overall workers had 3.3 times the
expected rate of an airway obstruction; those who had never
smoked had 10.8 times the expected rate. To date there has
been no research done on the potential risk to consumers.
However, US/EPA is currently conducting an inhalation study
that was due to be published in the fall of 2006, but has yet
to be released.
4)LITIGATION . More than 200 lawsuits have been filed nationwide
in the past four years by workers with obstructive lung
disease. Four of five cases that have gone to trial were won
by plaintiffs, with awards ranging from $2.7 million to $20
million.
5)CALIFORNIA WORKERS . Since 2004, eight workers in California
between the ages of 29 and 49 years old throughout California
have been identified and diagnosed with bronchiolitis
obliterans. These workers all live in Southern California,
where the majority of flavor manufacturing plants are located.
Of the six for which smoking history is known, none have ever
been smokers. Only one of the workers was known to have had
asthma as a child. The Department of Public Health (DPH) is
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currently conducting tests on employees at the 30 known
California manufacturers of diacetyl. On March 21, 2007, DPH
stated that it has identified 22 new cases of potential
respiratory illnesses.
6)CAL/OSHA . Cal/OSHA has formed an advisory committee to make
recommendations to the board on potential actions regarding
diacetyl. At its March 21, 2007 meeting, the advisory
committee circulated draft regulations that contained proposed
mitigation measures, but did not propose the adoption of a
Permissible Exposure Level (PEL). At the same meeting, a
draft standard for discussion by the interested stakeholders
was circulated.
7)SUPPORT . Supporters contend that, with no known PEL for
diacetyl, the Legislature should ban acetyl, especially since
alternative flavorings that release less volatile chemicals
are available. In fact, supporters report that some flavoring
manufacturers have already stopped using diacetyl. Supporters
also argue that while opponents of this measure may argue that
the regulatory process should be allowed to run its course,
immediate legislative action is necessary to ensure that
additional workers do not fall to this debilitating and
sometimes deadly disease.
8)OPPOSITION . Opponents state that while there is currently a
link between exposure to diacetyl and workplace exposure,
there is no evidence that diacetyl is a health concern for
consumers and the ban proposed in this bill is over broad.
They also argue that the concentration of most
diacetyl-containing flavors used by the food industry is quite
low-frequently below 1% in the flavoring mix, which is in
contrast to the 30% to 40% diacetyl content of butter
flavoring for some microwave popcorn. Opponents also point to
the Cal/OSHA advisory committee that brings in members of
organized labor, affected industries, state agencies and other
concerned parties to examine the issues surrounding
occupational exposures. Most opponents believe that the
advisory committee process should be allowed the opportunity
to develop guidelines and/or regulations on the use of
diacetyl in the workplace before the Legislature acts.
9)RELATED LEGISLATION . AB 514 (Lieber) requires the Standards
Board, no later than January 30, 2008, to adopt a standard to
prohibit the use of diacetyl in the workplace by January 1,
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2010. AB 515 (Lieber), among other things, requires the board
to adopt standards, by specified, deadlines, establishing a
PEL for workplace hazardous substances. AB 514 and AB 515 are
currently before the Senate Labor and Industrial Relations
Committee.
10) DOUBLE REFERRAL . This bill was previously heard in
Assembly Environmental Safety and Toxic Materials Committee,
and was approved on a 5-2 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County, and Municipal Employees
Breast Cancer Fund
California Interfaith Partnership for Children's Health and the
Environment
California Labor Federation, AFL-CIO
California League of Conservation Voters
California Teamsters Public Affairs Council
Center for Environmental Health
Commonweal
Environment California
Sierra Club California
United Food and Commercial Workers' Union
Worksafe
Opposition
California Chamber of Commerce
California Grocers Association
California Manufacturers and Technology Association
California Restaurant Association
California Retailers Association
Department of Finance
Grocery Manufacturers/ Food Products Association
Analysis Prepared by : John Gilman / HEALTH / (916) 319-2097