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Popcorn Workers Lung Lawsuit Filed by Microwave Popcorn Lover

Jan 16, 2008 | Parker Waichman Alonso LLP

A man who may have developed Popcorn Workers Lung from a two-bag-a-day microwave popcorn habit has filed a product liability lawsuit against Kroger Co. and two of its divisions: grocery store King Soopers’ parent company, Dillon Companies Inc., and food distributor Inter-American Products Inc. for selling the popcorn that made him sick.  Wayne Watson is the first person outside of the snack industry known to have been diagnosed with Popcorn Workers Lung, a rare and sometimes deadly lung ailment.   Watson alleges that he developed Popcorn Workers Lung as a result of being exposed to diacetyl in the microwave popcorn he ate on a daily basis.  

Popcorn Workers Lung – also known as Bronchiolitis obliterans  - is a form of fixed lung disease that makes it difficult for air to flow out of the lungs.   Diacetyl is used to give microwave popcorn and other snacks a buttery flavor. In 2003 and 2004, the National Institute on Occupational Safety and Health found an association between the toxic substance and the development of Popcorn Workers Lung among hundreds of workers at six Midwestern popcorn factories. In April, the Centers for Disease Control  reported that workers at food flavoring factories, as well as popcorn plants, were at risk for the disease.

Until Watson was diagnosed with Popcorn Workers Lung, only people working in the flavorings and snack food industry had presented with the disorder.  In September, the Food & Drug Administration (FDA) announced it was investigating Watson’s case, and the revelation of his Popcorn Workers Lung diagnosis raised concerns that other consumers might be at risk for the disease.

Watson’s Popcorn Workers Lung lawsuit is just one of over 500 lawsuits filed by people – mostly snack food industry workers -- disabled by Popcorn Workers Lung linked to diacetyl exposure.    That has prompted some manufacturers to act, and some will no longer be using diacetyl in their foods.  ConAgra—the nation’s largest producer of popcorn—has removed diacetyl from its microwave popcorn, citing concern for its workers’ health.   The nation’s second-largest producer, General Mills, which Sells popcorn under the Pop Secret brand  also removed diacetyl from its products in October, and the third biggest popcorn maker, American Pop Corn Co. which makes the Jolly Time brand, is also reformulating its flavorings to remove diacetyl.

Meanwhile, there has been a movement to convince federal regulators to police the use of diaceytl in the workplace, but those efforts have had mixed results.  The Occupational Safety and Health Administration (OSHA), which sets limits on how much of a dangerous substance a worker can be subjected to, said in 2000 that it had no standards for the flavoring and that it wasn’t a problem because the FDA considered diacetyl “safe.”   For its part, the FDA has maintained that it has no jurisdiction to evaluate hazards posed by breathing vapors from food additives.   It was only this year that OSHA started to investigate diacetyl exposure in snack food industry workers, and that agency is expected to look into setting standards for workers next month.