On April 14, 2022, the Environmental Protection Agency (EPA) released draft conclusions in a report updating its analysis regarding formaldehyde exposure, suggesting that long-term exposures to small amounts of formaldehyde in the environment can increase the risk of rare head and neck tumors, leukemia, and other threats to health. The conclusions are not final agency action. Still, manufacturers should be aware of the potential for EPA’s analysis to influence both regulation and litigation at both the state and federal levels.
For over a decade, there has been much debate and study on the long-term effects of exposure to formaldehyde. The EPA’s new analysis is an update of a 2010 draft EPA report that was heavily panned by scientists, legislators, and chemical manufacturers and that drove the EPA back to the drawing board. For example, the National Academies of Sciences, Engineering, and Medicine criticized the 2010 draft EPA report for failing to describe the rationale behind its methodology and failing to sufficiently support its conclusions.
The updated analysis is based on a totally new analysis of scientific studies about formaldehyde, including research published after 2010. The current analysis differs from EPA’s previous findings in that it incorporates studies using new technologies that can measure smaller doses of formaldehyde. The health concerns discussed in the EPA’s updated analysis are largely the same as previously published, including increased risk of tumors in the head, neck, and sinuses; leukemia; decreased pulmonary function; asthma; and allergies. The report also addresses the possibility that inhaling formaldehyde can delay pregnancy and cause spontaneous abortion.
The focus of the EPA report is on environmental exposure and formaldehyde as a hazardous air pollutant. However, formaldehyde is also used to make thousands of products and other chemicals used for adhesives, paint, insulation, plywood, dishwashing liquids, permanent press fabrics, paper products, medicines, embalming fluid, makeup, and other goods. As such, manufacturers should be aware of the potentially immense impact of EPA’s analysis on tort litigation.
Manufacturers are not strangers to formaldehyde litigation. For example, in 2018, Virginia-based Lumber Liquidators agreed to pay $36 million to resolve class action lawsuits alleging that the company sold formaldehyde-laced laminate flooring imported from China to consumers. The level of formaldehyde in the imported laminate was alleged to have exceeded emission standards adopted by the federal government.
For now, the updated analysis is merely in draft form and has yet to undergo scientific review by the National Academies of Sciences, Engineering, and Medicine. The EPA is accepting public comments on the updated analysis through June 13, 2022.
The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.