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The Intensifying Regulatory Investigation of Formaldehyde and Its Implications

By: Stan Perry
Posted: November 1, 2011, from the November 2011 issue of GCI Magazine.

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Given that the report was released on a Friday, many missed the weekend coverage, but one interested group, toxic tort lawyers, certainly did not miss the government’s announcement—and the National Toxicology Program’s report could be the tipping point for making formaldehyde the focal point of a wave of toxic tort cases based upon occupational or consumer exposure to the chemical.

Details and Guidance

Toxic torts are lawsuits filed by persons claiming chemical exposures in occupational or household environments caused an illness (the illness is usually, but not always, some type of cancer.) The most famous—or infamous—toxic tort lawsuits have involved exposures to asbestos, silica or benzene.

Plaintiffs’ attorneys have been closely following the developments and studies regarding formaldehyde, in part because the major manufacturers and users of formaldehyde are solvent and numerous—in addition to cosmetics and hair products, formaldehyde is a ubiquitous component in products such as compressed board and cleaning agents. From the plaintiffs’ lawyers’ perspective, a viable defendant who sold or used a national product that has an alleged connection to a serious form of cancer is the best possible scenario; the National Toxicology Program’s report—stating that, in part, “Many factors, including the amount and duration of exposures, and an individual’s susceptibility to a substance, affect whether a person will develop cancer,” leading to the clear conclusion that formaldehyde is a human carcinogen—strengthens their resolve.

The chemical’s potential harm expanded from a very rare nasal cancer to a much more common form of leukemia (acute myelogenous leukemia, or AML). Approximately 30,000 leukemia cases are diagnosed each year in the U.S., and approximately half are AML, which is one of the most difficult forms of leukemia to treat. And the EPA determined formaldehyde should be considered a cause of AML. The World Health Organization’s International Agency for Research on Cancer’s also confirmed the connection between formaldehyde and AML.

The government’s listing of formaldehyde in its 12th Report on Carcinogens brings the level of concern to a new height that will likely lead to development of new federal regulations on its use. It is better to think about the risks and initiate planning than to try to deny the potential problems. The beauty industry can take the following steps now to prepare for potential formaldehyde litigation:

  • Keep informed regarding industry practices and recommendations regarding the safe handling and use of formaldehyde.
  • Keep your employees informed as you become informed. Don’t let their knowledge be limited to the popular press or what their friends or relatives tell them. Nothing defeats rumors like facts and science.
  • Maintain your documents and records, including electronic information, in an accessible and producible manner.
  • Evaluate your litigation risks. Do you have insurance coverage? Are you owed indemnity by someone else (e.g., the seller of the product at issue)?
  • Plan ahead for your first (or next) lawsuit. What legal counsel will you retain? Who should be your company witnesses?
  • Continue to follow the government’s actions on its report and discussions from the ACC and Formaldehyde Council.