BILL ANALYSIS
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THIRD READING
Bill No: SB 456
Author: Simitian (D)
Amended: 4/9/07
Vote: 21
SENATE ENV. QUALITY COMMITTEE : 4-2, 3/26/07
AYES: Simitian, Kuehl, Lowenthal, Steinberg
NOES: Runner, Aanestad
NO VOTE RECORDED: Florez
SENATE APPROPRIATIONS COMMITTEE : 10-6, 5/31/07
AYES: Torlakson, Cedillo, Corbett, Florez, Kuehl, Oropeza,
Ridley-Thomas, Simitian, Steinberg, Yee
NOES: Cox, Aanestad, Ashburn, Dutton, Runner, Wyland
NO VOTE RECORDED: Battin
SUBJECT : Diacetyl
SOURCE : Author
DIGEST : This bill prohibits, on and after June 1, 2008,
a person manufacturing, processing, or distributing a
product containing diacetyl. This bill authorizes the
Office of Environmental Health Hazard Assessment, in
conjunction with the California Environmental Protection
Agency, to defer the effective date of the prohibition up
to a total of four years if specified conditions are met.
ANALYSIS :
CONTINUED
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Existing law:
1.Under the Federal Toxic Substances Control Act of 1976
the U.S. Environmental Protection Agency is authorized to
regulate the manufacture, use, distribution in commerce,
and disposal of chemical substances produced or imported
into the United States.
2.Under the United States Federal Food, Drug, and Cosmetic
Act the Food and Drug Administration is authorized to
oversee the safety of food, drugs, and cosmetics.
3.Under the Occupational Safety and Health (OSH) Act of
1970, created the Occupational Safety and Health
Administration (OSHA) to "assure safe and healthful
working conditions for working men and women," and
provides states the authority their own safety and health
programs as long as those programs were at least as
effective as the federal program. Enforcement and
administration of the OSH Act in states under federal
jurisdiction is handled primarily by OSHA.
4.Under the California Hazardous Substances Act, prohibits
the manufacture, production, preparation, compounding,
packing, selling, offering for sale, or keeping for sale
within the State of California of a package of a
misbranded hazardous substance or banned hazardous
substance.
5.Under the California Labor Code, the California
Occupational Safety and Health Administration Standards
Board (Cal OSHA) is established and is required 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.
This bill prohibits, on and after June 1, 2008, a person
from manufacturing, processing, or distributing in commerce
a product containing diacetyl. The director of the Office
of Environmental Health Hazards Assessment (OEHHA) may
grant a temporary waiver as specified.
Comments
Diacetyl is an artificial flavoring that is mixed with
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other ingredients to produce a butter-like flavor in a
variety of food products. It is used in hundreds of
consumer products, including, but not limited to, microwave
popcorn, pancake syrup, cakes, candies, and frozen foods.
Exposure to diacetyl vapors has been associated with
constrictive bronchiolitis obliterans, or "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. In the last
year, the California Department of Health Services has
identified eight confirmed cases of workers in California
who have contracted bronchiolitis obliterans and is
currently investigating additional cases. In the United
States, it is estimated, that there are thousands of people
who have been stricken with this illness and may not even
know that they were exposed to this chemical. No safe
exposure level has been determined by either state or
federal governmental entities by which mitigation measures
can be developed and implemented. According to the
author's office, by banning Diacetyl, this bill will
protect Californians from exposure to a known toxic
chemical.
Health effects . Inhalation of diacetyl vapors can lead to
bronchiolitis obliterans, a disease that literally
obliterates the lungs by scarring the airways. There is
no treatment or cure for the disease. The only option is a
lung transplant. Employees from diacetyl manufacturing
plants nationwide have been diagnosed with bronchiolitis
obliterans.
Diacetyl Studies . In 2000 NIOSH (National Institute for
Occupational Safety and Health) 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
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popcorn factory workers concluded that those workers had a
3.3 times-higher chance of an airway obstruction.
To date there has been no research done on the potential
risk to consumers. However, USEPA is currently conducting
an inhalation study that was due to be published in the
fall of 2006, but has yet to be released.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2007-08 2008-09 2009-10
Fund
Deferral Review $87 $175 $175
General
Cal/OSHA savings (unknown, potentially thousands of
dollars) General
Cal/OSHA has formed an advisory committee to make
recommendations to the Cal/OSHA board on potential actions
regarding diacetyl. If this bill were enacted into law,
Cal/OSHA would no longer need to have an advisory committee
on diacetyl, mitigation measures, or adopt permissible
exposure levels (PEL). Appropriations staff estimates that
savings from having to adopt a PEL for diacetyl and
mitigation measures would be about $40,000. It is unknown
how much savings would be realized as a result of ending
the efforts of the advisory committee.
SUPPORT : (Verified 6/1/07)
American Federation of State, County and Municipal
Employees
Breast Cancer Fund
California Labor Federation
California Teamsters Public Affairs Council
Environment California
Sierra Club California
United Food and Commercial Workers' Union
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OPPOSITION : (Verified 6/1/07)
Department of Finance
California Chamber of Commerce
California Grocers Association
California Manufacturers and Technology Association
California Restaurant Association
California Retailers Association
Grocery Manufacturers/Food Products Association
ARGUMENTS IN SUPPORT : Proponents argue that exposure to
diacetyl has been associated with many cases of a severe
lung disease among workers in microwave popcorn facilities
called bronchiolitis obliterans (BO). So far, three
workers in California have developed BO, and at least one
has died. Five others have developed other lung obstructive
disorders which are inked to exposure to diacetyl. While
the disease has been labeled "popcorn workers lung" the
disease is not limited to popcorn factories; cases of
work-related lung disease have also been reported among
diacetyl-exposed workers employed at factories where the
flavorings are produced. These stricken workers are young,
non-smokers, and were exposed for relatively short periods
of time. Most of the eight workers are severely impaired
and cannot work. One of the impacted workers is on the
waiting list for a lung transplant. Cases have been
occurring among workers in flavorings plants in California
since at least 2004 and given the lack of knowledge about
the users of diacetyl and the potential to misdiagnose this
disease, there could be many more cases of BO.
According to supporters, there is strong evidence that BO
is caused by exposure to diacetyl. This evidence comes
from studies done by the National Institute for
Occupational Safety and Health (NIOSH) at factories in
which workers have developed the disease, as well
laboratory studies in which animals have been exposed to
diacetyl or butter flavoring, and developed severe lung
damage.
The proponents state, in 2004, NIOSH issued an official
alert about the connection between workplace exposure to
diacetyl and irreversible lung disease. Furthermore, over
40 leading occupational and public health experts
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petitioned federal OSHA in July 2006 for an emergency
temporary standard.
Supporters state that according to the Division of
Occupational Safety and Health (DOSH), there are more than
25 plants using diacetyl flavorings in the state of
California. Moreover, thousands of California food
production workers may be exposed to diacetyl and/or other
chemicals that make up butter flavoring in industries
including food flavoring manufacture, microwave popcorn,
butter, cheese, cake mixes and flours, cookies and
crackers, candy, chocolate, flavored oils and syrups,
potato chips and other snacks and frostings.
Supporters contend that since the science is still silent
on whether or not there even is a PEL for diacetyl, the
Legislature should prohibit, especially since alternative
flavorings that release less volatile chemicals are
available. In fact, some flavoring manufacturers have
already stopped using diacetyl.
The 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
prey to this debilitating and sometimes deadly disease.
ARGUMENTS IN OPPOSITION : The California Chamber of
Commerce argues 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.
The California Grocers Association (CGA) states that
Cal/OSHA has convened an advisory committee that brings in
members of organized labor, affected industries, state
agencies and other concerned parties to examine the issues
surrounding occupational exposures. CGA believes that the
advisory committee process should be allowed the
opportunity to develop guidelines and/or regulations on the
use of diacetyl in the workplace and opposes a mandated
ban.
The Department of Finance is opposed to this for the
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following reasons:
1.The bill's language would ban hundreds of consumer food
products no later than June 1, 2008, however, it appears
that harmful effects for diacetyl are restricted to
occupational exposures, making such a broad-based ban
unnecessary.
2.The bill imposes costs upon the Office of Environmental
Health Hazard Assessment (OEHHA) and does not contain an
appropriation to cover these costs.
3.It is unclear by what means or by what entity the bill's
provisions would be enforced. No funding is included in
the bill for enforcement.
4.Cal/OSHA, DHS, the federal government, and other
stakeholders are currently examining the issue of
exposure to diacetyl. They are also looking at
occupational safety measures that might be required to
ensure worker safety. Since their findings could result
in determinations of a PEL and effective mitigation
measures, a ban on products contain diacetyl may be
premature.
5.It is unclear how OEHHA would determine that a
prohibition on the sale of a specific product would
"cause substantial economic hardship to the users of the
product," one of the conditions necessary to qualify for
an OEHHA authorization to delay ban implementation.
TSM:nl 6/1/07 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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