THE VERDICT
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EGULATORY DEVELOPMENTS— and considerable media attention—concerning exposure to chemicals and other harmful environmental substances, some from consumer goods, continue to generate waves of litigation: consumer class actions alleging improper labeling, personal injury claims regarding cancer and other diseases, and more. M any tim e s , th e se ca se s are spearheaded by plaintiffs’ lawyers alleging previously unrecognized hazards, as with ethylene oxide (EO) and poly fluoroalk yl substances (PFAS). In other instances, the cases involve substances that have been recognized as hazardous but the litigation focuses on a new class of defendants. Informed product manufacturers should take heed of the evolving litigation around potential exposure to these chemicals and substances , old and new, that allegedly present imme diate or long-term he alth problems.
Ethylene Oxide
Chemical Considerations Consumer and residential exposure to a variety of chemicals and substances is increasingly fertile ground for the plaintiffs’ bar, with an array of new litigation targeting product manufacturers. Here’s a primer. BY DAVID A. FUSCO, TARA L. PEHUSH, VINCENZO R. CHIMERA AND LAURA K. VEITH
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BUSINESS EDITION | SUMMER 2023
EO is a versatile compound used to make ethylene glycol and many consumer products, including household cleaners and personal care items. It’s also used to sterilize medical equipment and other plastics sensitive to heat or steam. In 1990, Congress amended the Clean Air Act to regulate EO as a “hazardous air pollutant.” More recently, the U.S. Environmental Protection Agency (EPA) produced its 2016 Integrated Risk Information System (IRIS) Assessment, in which it determined EO is 60 times more toxic than previous estimates and “c a r c i n o g e n i c to h u m a n s .” O n August 22, 2018, the EPA released i t s 2 0 1 4 N a t i o n a l A i r To x i c s Assessment as a screening tool to help state and local air-quality agencies identify emission sources for further study, incorporating the IRIS Assessment ’s risk values. It classified EO as a “regional cancer risk driver,” designating a number of census tracts as posing potential increased cancer risk due to EO emissions. EO lawsuits frequently target commercial sterilizer s that use EO to treat medical devices when steam cannot be used, as well as industrial manufacturers that use EO in their operations . O n September 19, 2022, a Cook County, Illinois, jury awarded $363 million to a plaintiff who alleged that she contracted breast cancer because