Exposure to certain chemicals has been said to contribute substantially to the onset of disease. So what are endocrine disrupting chemicals (EDCs) and can exposure generate the increase in claims? BLM partner David Kidman explores this emerging risk.
A recent study published in the Endocrine Society’s Journal of Clinical Endocrinology and Metabolism stated that “EDC exposures in the EU are likely to contribute substantially to disease and dysfunction…with costs in the hundreds of billions of Euros per year”. The World Health Organisation considers EDCs “a global threat that needs to be resolved”. How does EDC exposure arise and what is the likelihood of successful claims?
What are EDCs?
The body’s endocrine system consists of glands which produce and release hormones into the bloodstream. They help to regulate the body’s functions including its immune system. EDCs are substances which can alter the function of this system, and potentially cause adverse effects. Various bodies, including the European Agency for Safety and Health at Work (EASHW), consider there to be an association between EDC exposure and breast, prostate and testicular cancer, reproductive dysfunction, birth defects, obesity, diabetes and loss of brain function.
Exposure to EDCs, particularly in developed countries, is widespread and unavoidable. They are found in food packaging, plastics, furniture, toys and cosmetics as well as airborne pollution. EASHW believes that many endocrine related diseases are on the rise, and that the role of EDC exposure may be significantly underestimated.
Food packaging
A 2014 article by Muncke and others noted that there were more than 4,000 chemical substances intentionally used in food packaging, some of which contain EDCs, plus unknown substances present as by-products, impurities and break down compounds. In the USA several types of asbestos are authorised for use, and formaldehyde (a known carcinogen) can be found at low levels in plastic bottles. Despite Regulation EC 1935/2004 requiring that materials intended to come into contact with food must be sufficiently inert, there is concern that this is ineffective at ensuring that substances do not leach into food and drink, particularly when exposed to high temperatures (e.g. a microwave meal).
The study mentioned at the outset of this article caused one of the authors, Professor Grandjean of Harvard University, to recommend that pregnant women and children eat organic fruit and vegetables and avoid using plastic containers and canned food, particularly in the microwave, due to the risk of EDCs leaching into food.
Prospect of claims
Claimants who develop a disease that is associated with EDC exposure will face substantial hurdles in proving breach of duty and causation. For example, an individual exposed to EDCs from plastic bottles would have to establish that a specific producer produced or supplied a product that was defective (Consumer Protection Act 1987) or of unsatisfactory quality (Sale of Goods Act 1979). The court must have regard to whether that product was objectively unsafe. It will be difficult to establish this when exposure arises from many other sources.
More difficult will be proving that the claimant would not have developed the disease ‘but for’ the specific EDC exposure. The Muncke article ‘threw down the gauntlet’ to epidemiologists to investigate consequences of EDC exposure, but there is arguably an absence of strong epidemiological evidence at present.
Furthermore, it will be extremely difficult to prove that specific exposure from a specific product or source caused the disease; and there may be multiple parties in the supply chain with diffuse responsibility for the product or its packaging. Litigation has failed on causation even where there is clear exposure to one agent from an identifiable defendant, and there is development of a specific condition (e.g. MMR group litigation and autism; Oral Contraceptive group litigation and venous thrombosis).
EDCs will continue to attract substantial attention globally and will continue to attract the headlines, but the likelihood of successful claims against policyholders is presently low. Nonetheless it is an emerging risk to watch.
David Kidman, Partner
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