Susanna Rankin Bohme

Maximizing Profit and Endangering Health: Corporate Strategies to Avoid Litigation and Regulation

Abstract Corporations and industries use various tactics to obscure the fact that their products are dangerous or deadly. Their aim is to secure the least restrictive possible regulatory environment and avert legal liability for deaths or injuries in order to maximize profit. They work with attorneys and public relations professionals, using scientists, science advisory boards; front groups, industry organizations, think tanks, and the media to influence scientific and popular opinion of the risks of their products or processes. The strategy, which depends on corrupt science, profits corporations at the expense of public health. Public health professionals can learn from this strategy how to effectively build scientific and public opinion that prioritizes both good science and the public health.

The beryllium double standard standard

Brush Wellman, the worlds leading producer and supplier of beryllium products, has systematically hidden cases of beryllium disease that occurred below the threshold limit value (TLV) and lied about the efficacy of the TLV in published papers, lectures, reports to government agencies, and instructional materials prepared for customers and workers. Hypocritically, Brush Wellman instituted a zero exposure standard for corporate executives while workers and customers were told the 2 microgram standard was “safe.” Brush intentionally used its workers as “canaries for the plant,” and referred to them as such. Internal documents and corporate depositions indicate that these actions were intentional and that the motive was money. Despite knowledge of the inadequacy of the TLV, Brush has successfully used it as a defense against lawsuits brought by injured workers and as a sales device to provide reassurance to customers. Brushs policy has reaped an untold number of victims and resulted in mass distribution of beryllium in consumer products. Such corporate malfeasance is perpetuated by the current market system, which is controlled by an organized oligopoly that creates an incentive for the neglect of worker health and safety in favor of externalizing costs to victimized workers, their families, and society at large.

Manipulated Data in Shell's Benzene Historical Exposure Study

Abstract In 1983, in the face of mounting evidence of excess leukemia among workers at Shell Oils Wood River (IL) and Deer Park (TX) petroleum refineries, Shell initiated the Benzene Historical Exposure Study (BHES). Shells prior research had implicated occupational exposure to benzene as the source of the excess leukemia. The BHES report submission, which ultimately found no link between exposure and the excess morbidity, coincided with OSHAs planned hearings over a new regulatory standard for benzene. Over the next two decades, Shell published several papers based on or expanding the BHES data, all of which concluded that the excess of leukemia was unrelated to benzene. A review of the raw data on which Shell and its consultants relied reveals that Shell manipulated and omitted data in order to reach conclusions that exculpated it from liability and helped delay stricter benzene regulation.

Small is Not Necessarily Beautiful

While nanotechnology seems to hold many promises, it may also present serious hazards. Initial research has noted some disturbing data for public health, including the possibility that exposure to carbon nanotubes may cause mesothelioma among experimental animals.1–5 The papers in this special issue for the most part describe methods to ascertain human exposure to nanotechnology for processes already in use. It is regrettable that these papers are being published only now, when the exposures in question may have been taking place for years. We would have preferred if product manufacturers and others had applied the precautionary principle before adopting nanotechnology; the community standard since at least 1942 has been that “Every new chemical or product should be investigated as to its toxicity before it is prepared in large amounts and released to the public.”6 The proverbial cat, however, is out of the bag. Despite the still mostly unknown risks of nanotechnology, commercial applications are underway.7 This situation signifies a crisis of corporate conduct and regulation in the United States and elsewhere. In response, we have taken the pragmatic approach of publishing this special, guest-edited issue that examines how best to assess occupational and environmental exposures to these new technologies. Worker and environmental safety lags behind commercial applications, and we believe we have a responsibility to participate in the conversation about how workers may be best protected from the risks presented by this technology. We include this editorial in this guest-edited issue due to our concerns regarding comments to the media by David Stone and Stacy Harper, two authors of the article, “Exposure Assessment: Recommendations for Nanotechnology-Based Pesticides” included in this issue.8 Drs. Stone and Harper offered prepublication comments on their manuscript to the press in violation of our embargo policy.9 While we believe this violation was accidental (the authors were operating with the understanding that their university media outlet would verify our publication date before releasing the story), we feel that the content of some of their remarks to the press misrepresented the material published in our journal and therefore merits some additional comments on our part. An article published online by KTVZ.com, entitled “Nanotech Pesticides? Safety Issues Arise,” quotes Dr. Harper as stating that “it should be possible to design nanoparticles with safety as a primary consideration, so they can help create pesticides that work better or are actually safer.” The article goes on to state that researchers say that, “The positive aspect of nanotechnology use with pesticides . . . is that it might allow better control and delivery of active ingredients, less environmental drift, formulations that will most effectively reach the desired pest, and perhaps better protection for agricultural workers.” None of these claims are made in the article included in this issue, as the media report seems to convey. Indeed, none of these claims have been scientifically substantiated by the authors in question, or, based on our search of the literature, in any published studies. As many studies published in our journal and elsewhere have amply demonstrated, problems of pesticide exposure are due to social and economic conditions of use in tandem with the toxicity of individual compounds. Toxic pesticides are heavily promoted by industry, often without adequate education on usage, less-toxic alternatives, or proper disposal methods.10–12 Agricultural employers worldwide often do not provide protective equipment to workers, and smallholders often lack the knowledge or resources necessary to adequately protect themselves.13,14 Pesticide labeling, use, and disposal regulations are often unenforced in the developing world; while the pesticide industry exercises influence on regulation worldwide.11,15–17 Uneven regimes of protection mean that developing world populations are most vulnerable to the health problems caused by pesticides.18 None of these problems will be solved by the development of nanotechnology-based pesticides. Drs. Stone and Harper’s comments to the press echo the mid20th century optimism that pesticides would feed the world;19 however, widespread hunger persists and to it has been added the public health and environmental damage wrought by synthetic pesticides. If history is any lesson, their optimism is misguided and nanobased technologies are likely to cause far more problems than they solve. Indeed, given the still grossly inadequate state of research into nanotechnology toxicology and environmental fate, it is scientifiEditorial

Secrecy and justice in the ongoing saga of DBCP litigation

Abstract Since the 1980s, banana workers from Central America and elsewhere have filed cases in the United States for sterility damages caused by exposure to the nematicide dibromochloropropane (DBCP) used during the1960s and 1970s. These plaintiffs’ efforts at holding fruit and chemical corporations accountable have been met with numerous obstacles. Many cases have been dismissed on the grounds that they would “more conveniently” be tried elsewhere, despite the fact that significant barriers exist to bringing such cases in many of these workers’ home countries. Using this strategy, defendants including Dole Food, Chiquita, Dow and Shell Chemical have been mostly successful in avoiding any penalty for their part in exposing banana workers to DBCP without adequate protection or information. In fact, although a few cases have settled, the first DBCP case did not reach the trial stage until 2007. In that case, the damages awarded to the six Nicaraguan banana workers were

Preserving a Forum for Transnational Litigation is a Public Health Imperative

5 million, an amount later reduced to

Beyond Reputation: Debate on the Role of Corporate Influence in Occupational and Environmental Medicine:

2·3 million. In 2010, Dole successfully sought to dismiss not only that case, but other cases brought by Nicaraguan plaintiffs. The company claimed that there was evidence of widespread fraud among Nicaraguan plaintiffs, attorneys, and judges, as well as lawyers based in the US. However, many of those accused of fraud did not have a chance to respond to those allegations or cross-examine their accusers. In addition, allegations of fraudulent behavior on the part defendants suggest that the story is more complicated. Instead of dismissing these cases — a defacto victory for the defendant — US courts should move forward with deciding these cases on their own merits; leaving juries to determine the veracity of plaintiffs and defendants’ claims.

Two opportunities to improve public health through US trade policy.

The deleterious effect of corporate actions on public health has been detailed in this journal and elsewhere.1,2 Put briefly, the corporate modus operandi privileges short-term profit over a host of human health and environmental concerns. Perhaps the easiest way to make a profit is to reduce costs; too often those costs are associated with equitable pay, environmental stewardship, and both workplace and consumer product safety. Where corporations save money, communities often pay—in the form of disease, environmental contamination, and/ or injuries or disease caused by dangerous products. We are in dire need of policies to prevent the adverse health effects of corporate actions, including effective means to hold companies accountable for health and environmental harms. In the United States, corporate power is reinforced by judicial decisions that grant corporations many of the legal rights of “persons.” In 2010, the US Supreme Court decided in Citizens United v. Federal Election Commission that limits on corporate contributions for political advertising constituted a violation of the free speech rights of corporate “per-sons.”3 Recently, however, two US courts found that corporations being sued in US courts for violations of international law—including offences such as slavery and genocide—could not be held liable because they were not “persons.” These differing interpretations of corporate personhood are unified gate violations of international treaties or of the “law of nations,” a body of international law that includes jus cogens, or “compelling law,” a set of inderogable norms that prohibit universally condemned acts such as slavery, torture, piracy, genocide, piracy, and wars of aggression. In September, the US Court of Appeals for the Second District in Kiobel vs. Royal Dutch Petroleum et al., dismissed plaintiffs’ claims of aiding and abetting the Nigerian government in committing human rights violations (including extrajudicial killing, arbitrary detention, forced exile, and property destruction) against Royal Dutch Petroleum, Shell Transport and Trading Company PLC, and Shell Petroleum Development Company of Nigeria, Ltd, on the grounds that the Alien Tort Statute does not confer subject matter jurisdiction over corporate defendants.5 The court maintained that while ATS precedent does confer jurisdiction over individuals as well as states, corporations are distinct from human persons. The court went on to reason that because ATS cases adjudicate whether defendants have violated international law, the court must also look to international law to determine if it has jurisdiction over a certain type of defendant. In this case, the court concluded that although individuals have been considered subject to international law since the Nuremberg trials, the concept of corporate liability had not reached the level of broad global acceptance it would need to be considered part of the law of nations, and therefore, the US court could not establish jurisdiction. In an amicus brief responding to the ruling, Nuremburg scholars disagreed with this reasoning, showing that the Allied Control Council had already condemned in outcome: They both increase corporate power at the expense of democracy and accountability. As such, they have profound effects on the social determinants of health as well as the ability of citizens to stop corporate abuses or hold corporations responsible for harms done. The decisions center on a previously obscure US statute, which has emerged over the past thirty years as an important tool for plaintiffs seeking accountability for serious human rights abuses by multinational corporations (MNCs), including forced labor and some environmental claims. The Alien Tort Statute (ATS) establishes that US “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”4 Access to US courts is key to holding MNCs accountable because they operate in many different parts of the world, including nations where national court systems may be corrupt, inaccessible, or overburdened. MNC conduct often varies in direct relationship to the strength of local governments in ensuring human rights and setting and enforcing labor and environmental regulations. Corporations move easily between nations, and are free to seek out the conditions most favorable to their operation, which often translates to seeking out the lowest level of wages and rights protections. Where people whose lives and health are affected by corporate activities do not have adequate access to a fair justice system, the ATS can provide a legal forum that may not otherwise exist. The ATS is meant to provide a forum for the litigation of the most serious of matters—it can only be used to litiEditorial

P.W.J. Bartrip's attack on Irving J. Selikoff.

In his article in this issue, Tee Guidotti casts recent works addressing corporate influence on occupational medicine as “collective act[s] of disparagement … undertaken … for political reasons.” We move beyond the question of reputation to address key conflicts in the history of occupational medicine, including the American Occupational Medical Associations historical role in weakening the beryllium standard and the American College of Occupational and Environmental Medicines recent efforts to limit the extent of the Family Medical Leave Act. The corporate practice of externalizing health and safety costs makes industry influence an important ongoing topic of debate in occupational and environmental medicine.

Attorney-directed screenings can be hazardous.

Two bills currently before the US Congress could improve the health of workers worldwide by changing the terms under which trade agreements and other trade policy are made in the US. Members of Congress who care about public health and a just trading system should act on both immediately. In addition, public health professionals have a unique opportunity to leverage support for these bills to create sustainable and healthy working and living conditions for populations around the world. The Public Health Trade Advisory Committee (PHTAC) Act (H.R.2293) introduced by Representatives Chris Van Hollen (DMD) and Lloyd Doggett (D-TX) would mandate substantial public health input into trade agreements and other trade policy negotiated by the United States.1 The United States Trade Representative (USTR) is responsible for developing and coordinating US international trade, commodity, and direct investment policy, and overseeing negotiations with other countries. The USTR has an elaborate system of advisory committees. Despite federal requirements that such committees be “fair and balanced,” the vast majority of these advisors ticipation in setting US trade policy.2 Among its many requirements, it would set out environmental, labor, food, and agricultural standards, as well as protect nations’ ability to retain and establish regulations to protect worker, consumer, and environmental health. The trade policies currently pursued by the US are embodied in bilateral and multilateral trade agreements, as well as the agreements and policies of the World Trade Organization (WTO) and international financial institutions, which the US often dominates. At the core of these policies is a commitment to trade liberalization— that is, the dismantling of restrictions on trade, finance, and capital investment. Although the oft-cited rationale behind these policies is to improve quality of life by increasing growth and income, there is in fact little correlation between trade liberalization and economic growth or poverty reduction.3–6 At the same time, mounting evidence points to a variety of ways in which these policies have adversely affected health and the environment.7,8 Trade liberalization can worsen working conditions and increase environmental contamination. The expansion of global trade, the growth of multinational corporations, and the extreme mobility of capital have resulted in a situation in which poor countries are often placed in the position of competing to provide the most favorable conditions to attract foreign investment, rather than making policies that respond to the needs of their citizens. This has led to what has represent corporate and industry interests. Currently, only two advisors have any background in public health. Passage of the PHTAC Act would change that by requiring significant public health involvement, including: