The Washington Post reports about the Kellogg Cereal recall this morning. As you may know,
Kellogg recalled 28 million boxes of Froot Loops, Apple Jacks, Corn Pops and Honey Smacks, the company blamed elevated levels of a chemical in the packaging.
The Washington Post article discusses how the Federal Food and Drug Administration simply does not have any knowledge about many of the chemicals used in consumer products:
The cereal recall hints at a larger issue: huge gaps in the government’s knowledge about chemicals in everyday consumer products, from furniture to clothing to children’s products. Under current laws, the government has little or no information about the health risks posed by most of the 80,000 chemicals on the U.S. market today.
In this instance, the Post explains that
Federal regulators, who are charged with ensuring the safety of food and consumer products, are in the dark about the suspected chemical, 2-methylnaphthalene. The Food and Drug Administration has no scientific data on its impact on human health. The Environmental Protection Agency also lacks basic health and safety data for 2-methylnaphthalene — even though the EPA has been seeking that information from the chemical industry for 16 years.
The information gap is hardly new. When the Toxic Substances Control Act was passed in 1976, it exempted from regulation about 62,000 chemicals that were in commercial use — including 2-methylnaphthalene. In addition, chemicals developed since the law’s passage do not have to be tested for safety. Instead, companies are asked to volunteer information on the health effects of their compounds, and the government can decide whether additional tests are needed.
What is most surprising is what the Post reports about the chemical that is in question in the cereal recall:
A natural component of crude oil, 2-methylnaphthalene is structurally related to naphthalene, an ingredient in mothballs and toilet-deodorant blocks that is considered a possible human carcinogen by the EPA. Kay Cooksey, a packaging expert at Clemson University, said 2-methylnaphthalene likely ended up in cereal because something went awry in the manufacturing of the foil-lined bags. The foil is attached to the paper bag with an adhesive that is heated, she said. If too much heat is applied or if the composition of the adhesive is incorrect, 2-methylnaphthalene could form, she said.
In a capitalist society where we rely on companies to make voluntary disclosures about the chemicals in food products, if the FDA isn’t regulating these companies, who is? The answer is often that the only mechanism keeping food companies honest is the civil justice system. The idea of filing a lawsuit has taken on a negative connotation in the United States. But considering that this is often the best and only way to protect the children who eat foods like Fruit Loops, we ought to be promoting our civil justice system, not attacking it.
In other words, the civil justice system often acts as an invisible private regulator. If products are safe and don’t harm anyone–that is, if companies do their homework before selling a product–then the civil justice system does not interfere with capitalism. But, on the other hand, when companies take short cuts or put safety on the back burner in favor of profit, the civil justice system can step in and act to protect our families.
Both an Emory School of Law graduate and MBA graduate of Goizueta Business School at Emory, Chris Nace focuses his practice on areas of medical malpractice, drug and product liability, motor vehicle accidents, wrongful death, employment discrimination and other negligence and personal injury matters.