Industry Market Trends

Poisoning Behind A Front of Trade Secrets

Aug 16, 2011

If you pay marginal attention to the news, you know that humans today carry more toxins in their bodies than their ancestors. Pesticides, heavy metals, and a dizzying array of chemicals that are used in our water, food, meat, medications and household goods have a way of creeping into our organs - either through ingestion or absorption. While some of these substances occur at only trace amounts, others linger at higher concentrations, slowly reaching amounts that could be considered "harmful."

Many Americans believe these substances are highly studied and regulated based on their toxicity, and that government health agencies have given an "all clear" for small amounts of these chemicals to be used in consumer products.

Most Americans would be wrong.

While obviously these substances are used throughout the world, Americans are uniquely toxic compared to the rest of the developed world. In his PBS documentary "Trade Secret," Bill Moyers explained that in Europe, regulators follow what's called the "precautionary principle," or the idea that in the face of scientific uncertainty when it comes to toxins, government should err on the side of protecting public health rather than wait for absolute evidence.

In the U.S., Moyers found that the chemical industry has actively worked to oppose this "precautionary principle," and has succeeded. Manufacturers have used their wealth and influence to win favorable treatment from politicians and used front organizations to bury Americans with pro-chemical propaganda in the media. The chemical industry's next step, says Moyers, is to strong-arm state legislatures into overturning gains that have been made to protect consumers from toxins.

The result is that though there are about 75,000 chemicals registered with EPA for use in industry, only a tiny fraction of them have undergone complete testing regarding their effects on health. Many of them are suspected by scientists to cause harm to humans, but because rigorous testing hasn't been completed on them, they are allowed to be used on consumer products.

One of the most effective means the makers of chemicals use to prevent scrutiny that might actively lead to investigation and the establishment of standard safe thresholds is the use of intellectual property laws: claiming that products' ingredients are "trade secrets." Many people might imagine that a company selling something that will come in close contact with consumers' bodies must disclose the ingredients contained in those products - at least to government agencies - prior to being allowed to stock store shelves with their products.

Once again, most people would be wrong.

While it's true that in order to patent a product, you must reveal exactly how it works or exactly what it contains, many companies will patent a product - and fully reveal formulas in this step - and then later change or "improve upon" a product. Changes or alternations to a product's formula are not required to be registered with or revealed to the U.S. Patent and Trademark Office.

While it's not unknown for companies to use trade secret laws to protect ingredients in their products - think how closely Coca-Cola guards the ingredients for its distinctive taste - some companies appear to be using the trade secret laws to protect them from challenge of their use of harmful or even illegal ingredients.

As I wrote recently, one of the most contentious patent-protected substances today involves the fluid used in "fracking," or hydraulic fracturing, a process used to access difficult to reach natural gas or oil deposits. Workers drill a hole into rock and pump in fracturing fluid, deep enough and hard enough to generate pressure that will crack the rock, helping release the natural gas or oil.

While fracking fluid is mostly water and sand, it's believed to include a number of chemicals that include known carcinogens, skin irritants and endocrine disruptors - chemicals that affect the function of adrenal glands. Individuals who live near fracking operations have reported a number of health problems in both humans and livestock (including cattle deaths).

The complaints against fracking fluid have become so pervasive that the EPA has been forced to step in. The agency is now studying the effects of fracking on drinking water, but results of the study aren't expected until 2014, says the agency.

But how do you study the effects of a substance when you're not allowed to know what it contains? For the manufacturers of fracturing fluid have claimed the magic of "trade secrets" to avoid revealing exactly what the fluid contains.

At the forefront of the push to reveal the ingredients in fracturing fluid has been environmental law firm Earthjustice, which has asked the EPA - on behalf of about 114 national and state groups - to mandate that the manufacturers conduct full toxicity tests on the chemicals and reveal the results to the public, reported Bloomberg.

"Thousands and thousands of wells are being drilled each year using these chemicals," said Megan Klein, a lawyer for Earthjustice. "We want the public to fully understand the risk of these chemicals being injected near their homes, schools and hospitals. We think there's information out there showing that these chemicals pose an unreasonable risk of harm, but there's not enough information out there to know for sure."

A few companies who make and use fracturing fluid have decided not to wait for the heavy hand of federal regulation and have created a Web site that went live in the spring. A few fracking interests are now offering a detailed list of ingredients being used in each well operated by them. The Web site now includes more than a thousand wells throughout the country, though not all the fracking players are baring their souls - or their formulas - yet.

Another "trade secret" scandal involved the chemical dispersant known as Corexit, which was widely used in the Gulf of Mexico to manage the 2010 Deepwater Horizon oil spill. While its maker, Nalco Holding Company, maintained the chemical was safe, alarming reports of health consequences were being reported by clean-up workers.

While Corexit 9527 was indeed effective at breaking up the oil, it has been designated a "chronic and acute health hazard" by the EPA. It's made with 2-butoxyethanol, a highly toxic chemical that was known to cause health problems in cleanup crews working on the Exxon Valdez spill in 1989.

What irritates many environmental groups and health organizations, though, is the FDA's lack of response to reports of toxicity caused by Corexit.

Brian Turnbaugh, a policy analyst at watchdog group OMB Watch, told the New York Times, "EPA had the authority to act all along; its decision to now disclose the ingredients demonstrates this. Yet it took a public outcry and weeks of complaints for the agency to act and place the public's interest ahead of corporate interests."

It was not the first time - or last time - the EPA has been accused of reactionary bumbling after a suspected poison was being used by a company hiding behind veil of trade secrets.

When hairdressers began reporting a variety of symptoms after using a chemical hair straightening product called "Brazilian Blowout," Allure magazine wrote an expose of the incidents - including the death of a woman in Brazil who was doing the process on herself - into the public eye, suggesting that the product contained dangerous levels of formaldehyde, a known carcinogen.

The product and the process that goes with it temporarily straightens hair by sealing each strand with a liquid keratin solution. The process is finished with heated flat iron.

In September 2010, Oregon's Occupational Safety & Health Administration (OSHA) received complaints of difficulty breathing, nose bleeds and burning eyes from stylists who used Brazilian Blowout. OSHA conducted tests on the product in samples taken from three Oregon hair salons and found it contained radically unsafe levels of formaldehyde: concentrations exceeding 10 percent. (Formaldehyde is permitted in cosmetics at concentrations less than 0.2 percent.) Health Canada also conducted tests on Brazilian Blowout and found a horrifying 12 percent formaldehyde: 6,000 percent more formaldehyde than allowable by law.

The Brazilian Blowout Company of California - which maintains that its product is safe and formaldehyde-free - went on the offensive, accusing Oregon's OSHA of "gross negligence" and violation of proper testing protocols. The company was apparently miffed that Oregon's OSHA obtained bottles of their product to test from salons rather than requesting samples directly from the manufacturer.

Brazilian Blowout refuses to release the product's ingredient list on the basis that a patent is pending on the formulation and its ingredients are privileged company information. While the State of California has filed a lawsuit against the company (it also has a number of civil suits pending against it), Brazilian Blowout continues to market its product as "safe and formaldehyde-free."

The company is playing with semantics, say experts. Though they may not be putting formaldehyde into the product directly, if you're adding water and a substance known as methylene glycol, which is contained in many hair straighteners, you're creating formaldehyde after-the-fact.

"Anytime you have water and methylene glycol, you are going to have formaldehyde. It's automatic. You can't stop it," said F. Alan Andersen, director of the group Cosmetic Ingredient Review. "So, saying 'formaldehyde free' for a product that has methylene glycol, is at best, misleading and under FDA law, could make the product misbranded."

Many people are wondering why it took numerous reports of illness and even a death before the FDA would begin to pay attention to a product like Brazilian Blowout. It's not hard to understand: apparently, there is no approval process within the FDA for cosmetics.

"It's important to note that hair straighteners are considered cosmetics and are not subject to pre-market approval," said FDA spokeswoman Stephanie Yao in a statement responding to press inquiries. "The use of formaldehyde in hair straighteners is not prohibited, and there are no limits on the level in our regulations."

Which begs the question, exactly why are cosmetics not subject to pre-market approvals, and why are there no formaldehyde standards on hair products? It's not like it's the first scandal with toxic ingredients in cosmetics.

In 2007, the Campaign for Safe Cosmetics tested 33 brands of lipstick and found that more than half contained detectable

lead, though lead was not listed as an ingredient. While there is no "safe limit" established for lead in lipstick (the FDA's own regulations of substances that may not be used in cosmetics don't even mention lead), the group used the U.S Food and Drug Administration's standard safe limit for lead traces in candy, which is .1 parts per million.

Several lipsticks - L'Oreal, Cover Girl and Dior - contained lead in the range of .5 to .6 parts per million, five to six times the safety standard for lead in candy. While these levels are still considered generally too low to be a worry to healthy women, they could present risk to pregnant women or small children.

The Campaign for Safe Cosmetics says that there are over 10,000 different chemicals used in cosmetics and only10 to 15 percent of them have been tested for safety. Cosmetic companies typically use "trade secret"screens to keep ingredients under wraps.

As we watch the meteoric rise of what's known in the industry as "cosmeceuticals" - expensive preparations that purport to offer dramatic skin improvement - the lack of FDA oversight on these products becomes even more alarming, if not from a health perspective, than at least from a deceptive marketing stance.

The chemical industry's efforts and tactics are hardly news. Back in 1979, a committee chairman of the American Chemical Manufacturer's Association wrote about his industry's efforts to reduce - or eliminate - government regulation and oversight. "Gentlemen, this is a campaign that has the dimension and detail of a war."

He was right. And the American people are - and will continue to be - the collateral damage.