Will “Popcorn Lung” Litigation Expand To Coffee & Vaping?

A type of litigation that targets a flavoring used in microwave popcorn may be about to branch into coffee and vaping products. The flavoring diacetyl is a highly volatile substance that has a “characteristic buttery flavor,” and it’s used by the barrel in microwave popcorn production facilities, as well as some flavored coffees and tobacco-based products that are used in vaping. Results in the popcorn lawsuits – which addressed worker and not consumer exposure – have been mixed, writes Locke Lord attorney George Talarico in the Defense Counsel Journal. This article goes into detail about several of the relevant diacetyl studies, including methods used and conclusions drawn, and should be of interest to those on either side of any toxic tort matter, regardless of the substance in question. In the case of diacetyl, available data includes both empirical/statistical studies of workers and higher-dose studies of animals. According to Talarico, evidence, by and large, suggests little if any causation, and where it can be said to exist damage manifests in the upper respiratory tract rather than deep in the lungs, where it can lead to serious and sometimes fatal disease and where there is the most serious potential for toxic tort litigation. Questions about the empirical studies arise due to a phenomenon which is noted by both occupational health advocates and toxic tort defense attorneys, although they come to very different conclusions about its implications. The issue is that workers subject to empirical studies typically have been exposed to numerous potentially harmful substances in addition to the one being tested. Many of the studies addressing popcorn lung fail to consider the impact “of the hundreds of other volatile organic compounds present at the subject workplaces,” Talarico says.