After taking a closer look at the SHIB, a few issues come to mind and are noted below. Hopefully, with the Diacetyl rulemaking effort, all stakeholders will soon be able to provide substantive comments help facilitate meaningful progress. Workers’ protection is at stake… it’s not like that’s important or anything. (yes, that is a bit of scarcasm at the end there).
There is a distinct change in language in this new SHIB which seems to be going unnoticed by stakeholders in the food manufacturing and flavoring industry. Specifically, there is a new purpose for this SHIB which I have not seen in previous guidance documents. That is, ‘to: Help employers understand the steps they must<emphasis added> take to provide their workers a safe and healthful work environment free of recognized hazards.’ The unusual and confusing use of the term ‘must’ conflicts with the SHIB’s disclaimer whereby it states that this document creates no new legal requirements. As a result, this document may create confusion among employers, industry safety and health professionals, workers, and other stakeholders as to what is required, what is recommended, and what might be cited. By virtue of this SHIB, is OSHA mandating new requirements on employers? This is a serious issue which ought to be addressed, clarified, and/or corrected by OSHA. Historically, the purpose of OSHA SHIBs has been to create awareness among employers and stakeholders of emerging risks, assist employers in identifying and mitigating potential risks, and generally to provide useful information to employers in order to better protect their employees. It appears that this SHIB may be taking that approach into a new direction.
Diacetyl has been identified as a ‘marker chemical’ suspected of contributing – solely or in combination with other chemicals – to a debilitating and irreversible lung disease commonly referred to as popcorn lung. As a result, the Agency seems to be taking the position that many or all of the viable substitutes for Diacetyl will require the same precautions. If this is the case, then OSHA and NIOSH need to provide clearer and more definitive direction because the industry is moving away from Diacetyl with substitutes which may not be any less problematic. In other words, the industry may be unwittingly jumping out of the pot and into the fire. The SHIB’s purpose uses the word ‘must’. The section in the SHIB which introduces OSHA’s recommendations states that certain practices are recommended for all flavorings including Diacetyl and its substitutes. The SHIB’s disclaimer states that this creates no new legal obligations. Which is it…. a must, strong recommendation, or simply information?
Is this OSHA’s attempt at backdoor rulemaking? I guess the release of the anticipated Fall Unified Regulatory Agenda may shed some light in that regard.
The industry has been awaiting definitive direction on the issue of Diacetyl and related substances. This SHIB seems to be confusing the issue, especially as it relates to substitutes. The industry wants to protect its workers. However, instituting expensive engineering controls and product reformulation without knowing whether they have reduced exposures low enough — or unwittingly substituted one problem for another — is unsettling.