Fog Watch

Corporate Sovereignty And (Junk) Science

By Edward S. Herman

 

One of the great myths and ideological rationales of capitalism is that consumers are sovereign, their demands ultimately ruling the system, with producers only responding to consumer needs and wants. In reality, by virtue of their immense resources and power, producers, not consumers, are sovereign.

This is dramatically evident in examining the recent history of the chemical industry, where “the corporation’s convenience has been allowed to rule national policy,” as was acknowledged in an exceptional President’s Science Advisory Committee report on Restoring the Quality of Environment back in 1965, in the wake of Rachel Carson’s book Silent Spring (1962). In accord with corporate convenience, chemicals may be marketed without proof of safety, and the onus is on consumers and the public to prove otherwise. Those suffering injury or death in consequence, or their heirs, may sue for damages, but not only is the burden of proof unfairly located, damaged individuals are at a huge disadvantage in seeking relief, because of difficulties in proving cause and the imbalance in the resources of plaintiffs and producers. These difficulties are compounded by producers’ informational and legal strategies, and form part of the basis on which producers make their business decisions. Thus, a memo disclosed in a suit against Ford for damages resulting from a faulty Pinto gas tank showed that the company had been quite aware of the defect, but calculated that the cost of engineering improvement was probably greater than anticipated lawsuit damages the company would have to pay from the resulting injuries and deaths.

If consumers were sovereign, or if this was a truly democratic community, the principles applicable to rights and obligations in production would be precautionary and with reverse onus. That is, goods would not be put into the market unless they were assuredly safe, based on full and adequate testing (the precautionary principle); and the responsibility for failures to assure safety would fall on the producers (the reverse onus principle). Under producer sovereignty these are rejected in favor of the principle of caveat emptor (buyer beware), the selection resting on the ability of the powerful to institutionalize rights serviceable to themselves.

The Chemical Industry’s Right to Poison

The producers of chemicals must of course meet a market test—that the goods be saleable—but chemicals may do the job for which they are designed (e.g., kill mosquitos) while producing side effects that are extremely harmful. Obviously, if workers or consumers using a product fall over dead on contact the product would not sell, but if damaging effects on users, and on outsiders and the general environment, are not immediately evident, producers may be able to sell profitably for a lengthy period, and with an effective use of corporate junk science and litigation they may be able to maintain profitability in excess of legal damage costs indefinitely.

The damaging effects fall under the economic rubric of “externalities,” as cases where the costs incurred by a business are imposed on others, and where even according to orthodox economics the market “fails.” If the chemical (and biological) science revolution has brought into existence many products with potential negative external effects that are subtle and long-term, the effects of a system of producer sovereignty may be dire. It may even constitute a serious violation of human rights, if pain, sickness, and death are imposed on large numbers by powerful people trying to keep their costs down, keeping the public uninformed, and denying accountability and responsibility.

 The chemicals industry grew rapidly during and after World War II, based in large part on the development of petroleum-based synthetic organic compounds, including “miracle” products like DDT and vinyl chloride (VC)-based plastics. As these wonder products killed mosquitos and other insect pests effectively (DDT), or offered cheap raw materials (VC), they were sold aggressively and used widely, without attention to side-effects.

Before side-effects began to receive significant (and industry threatening) attention, a huge structure of interests had been built up, centered in the chemical producers, with 1997 sales of $247 billion and profits of $19 billion, but also including industrial users, pesticide-dependent farmers, industry-servicing scientists, and federal and state departments of agriculture. When regulation came in the 1970s, this power structure had no trouble in getting “grandfather” rights to continue producing the tens of thousands of chemicals already in the market without assurances of safety; and for new chemicals, the only obligation of producers was to report any ill-effects to the EPA (but not to the public).

What this means, and one of the lessons of Rachel Carson’s Silent Spring, as well as the powerful works by Samuel Epstein (The Politics of Cancer, 1978), Sandra Steingraber (Living Downstream, 1996), Dan Fagin and Marianne Lavelle (Toxic Deception, 1996), and Theo Colborn, Dianne Dumanoski, and John Myers (Our Stolen Future, 1997) is that the sovereign producers of chemicals have been able to treat the entire populace, and ecological system, as guinea pigs in a gigantic experiment testing the effects of a vast flood of possibly poisonous chemicals. Because many of the chemicals are slow-acting, with varying effects complicated by interactions with other chemicals, and because of the power of the chemical industry interests to suppress and obfuscate, the great experiment—or “epidemic in slow motion”—continues in full flower 36 years after the publication of Silent Spring.

How do the producers assure their continued right to poison? They operate through five interrelated processes: (1) controlling and limiting information; (2) using science as an instrument of public relations; (3) dominating or stalemating the regulatory process, directly or through political influence; (4) the strategic use of litigation; and (5) influencing the media to normalize the producers’ right to poison.

In each phase of their exercise of control the industry uses intimidation, bullying scientists, regulators, the media, publishers who permit the expression of non-industry views, and even advertisers in publications the industry wants to discipline. Ad hominem attacks, smears, and libel suits are just some of the intimidation tactics of an industry that will stop at nothing to protect its freedom of action and bottom line.

In a system of consumers’ sovereignty, or substantive democracy, obtaining and making public detailed and unbiased information on any adverse effects of chemicals would be a high national priority. In the real world of producers’ sovereignty, manufacturers are responsible for testing them for hazards. But their primary interest is in the product’s commercial use, not its side effects, which for the producers are a nuisance and potential sales barrier. As this makes their conflict of interest in testing for and reporting hazards profound, allowing them to dominate the process of collecting information about the hazards of their own outputs violates every rule of sound policy-making.

Democratic and consumer-oriented systems would place testing in the hands of the EPA or independent (non-corporate funded) testing agencies. But the producers successfully prevent this. They have also been unwilling to place money into a blind pool for independent testing—they want testing to be left in their own hands, to assure an appropriate bias.

By maintaining control, releasing information selectively, with frequent suppressions and delays, sponsoring poor and self-serving research, and in general creating informational uncertainties, the producers can derail claims of damage and stall regulatory actions, sometimes indefinitely. Thus, the U.S. plastics industry did no studies of the possible carcinogenicity of VC for over 20 years, despite manifold evidence that it caused liver cancer in workers. When in the early 1970s Italian toxicologists found compelling evidence that VC was a potent carcinogen, the U.S. industry, which had entered into an agreement with European producers to share information but not to disclose without prior consent, failed to disclose it to the FDA or National Institute for Occupational Safety and Health for 15 months. According to the American Association for the Advancement of Science, this suppression meant that “tens of thousands of workers were exposed without warning, for perhaps some two years, to toxic concentrations of vinyl chloride.”

Among other examples, the toxic effects of Kepone were discovered by Allied Chemical in the early 1960s, but were undisclosed till a group of workers developed crippling neurological and other diseases a decade later. Illustrative of the massiveness of delayed releases and suppressions, when the EPA granted an amnesty to the industry in 1991 for prior failure to produce evidence of hazard, the industry produced over 10,000 studies which they had somehow neglected earlier.

One delaying tactic is to suggest that more information is needed, but the producers regularly try to prevent that information being gathered by individuals and groups outside their control. When Dr. Irving Selikoff wanted worker records to study the effects of asbestos, he was refused access. In a notorious case, after 14 relatively young workers who had worked with BCME, a potent carcinogen, had died of lung cancer, Rohm and Haas refused to cooperate with one independent investigator because he insisted on the right to publish any findings. Another researcher was denied worker records on the ground that they did not exist, although such records were produced later at a workmen’s compensation trial. R & H denied the carcinogeneity of BCME, blaming the deaths on workers’ smoking and air pollution, while maintaining a deadly “open” manufacturing process for 18 years; Dow, which produced BCME for many years in a closed system claimed that only one worker, a heavy cigarette smoker, developed lung cancer.

The producers have always fought tooth and nail against disclosure of chemical threats to workers, product users, and the community. Under intense industry pressure, estimates of the risk to workers and nearby residents of dry-cleaning establishments using the highly toxic perchloroethylene (perc) were kept from the public by the EPA in the early 1990s. After the 1984 disaster from a Union Carbide chemical spill in Bhopal, India, where the nature and character of the destroying chemical had not been disclosed, making medical assistance difficult, congress passed the Emergency Planning and Community Right-To-Know Act in 1986, so that for the first time the chemical industry had to reveal the billions of pounds of its toxic releases of 654 chemicals into the air, water, and land. After the fact, industry members admitted that these disclosures had a profound effect on their emissions policies, but the law was barely passed over furious industry opposition.

With the Republicans and New Democrats in power, industry is closing down the right to know under so-called Audit Privelege Laws—sometimes called Right to Know Nothing Laws—which allow corporations that self-report violations of environmental laws, and take “reasonable” steps to achieve compliance, to be free from both punishment and requirements to disclose information to the public or in a legal proceeding. These laws, once again depending on industry for self-enforcement, have been passed in 21 states, and have been accepted by the Clinton administration. A federal version is being offered in the Senate under the Orwellian title “The Environmental Protection Partnership Act.”

The industry fights disclosure on the alleged ground of the need to protect proprietary secrets and the desire to avoid unwarranted fears—not, of course, their interest in covering up warranted fears or avoiding liability and damage suits. That they can regularly fight against and violate principles of full disclosure when human health is at stake, and not suffer serious punishment, aggressive and hostile regulation, and social ostracism, testifies to their sovereign power.

Science As A Public Relations Tool

Industry uses science in two ways: to develop products and to protect its interests by means of public relations and litigation. Because the first form is traditional applied science that does employ scientific standards, the importance of the second form of use of science is underrated. If “junk science” is the political, opportunistic, and PR use of science, than corporate junk science completely dominates junk science terrain. However, corporate power feeding into the media has caused the term junk science to be applied mainly to the science used by environmentalists and lawyers suing corporations for product and environmental abuses.

 (1) Lawyer hegemony over corporate science. Corporate science is often controlled or strongly influenced by lawyers. It is now on the record that cigarette company science was closely monitored and controlled by corporate lawyers with an eye to potential litigation. Sensitive science was often located abroad, out of legal harm’s way, research programs that might suggest damage from cigarettes were sometimes vetoed by lawyers, and lawyers went to great lengths to “keep damaging information about smoking and health from the public” (WSJ, April 23, 1998). One judge accused the industry of secretly funding “Special Projects” picked by lawyers “to promote a public relations fraud” (WSJ, March 22, 1996).

But lawyer control of science has hardly been confined to cigarettes. An accidental release of documents on the formaldehyde industry’s lobbying and litigation showed that “the formaldehyde manufacturers had taken great care to ensure that lawyers had signed off on all of their documents, including scientific work and draft press statements” (Fagin and Lavelle). In a case where a testing company found that formaldehyde produced cancer in rats, a meeting of industry members concluded that the statement that the test was “conducted properly” and the results seemed “valid” “should have been omitted from a legal standpoint.” Secret documents by Dupont, disclosed in a judicial proceeding involving the fungicide Benlate, showed that company scientists reported directly to the company legal departments, and one company lawyer noted that “in the litigation mode we will not be forced into admitting that we have found a cause and it is our fault.”

(2) Corporate junk science. The chemical industry regularly claims a devotion to “good science,” but the record shows clearly that their criterion is strictly pragmatic: good science is that which yields congenial results, irrespective of scientific quality. The industry’s opportunism here is limitless. In one case, involving the study of saccharin, although the methodology was approved in advance, and preliminary “favorable” results were greeted enthusiastically, the final results not meeting industry desires the methodology was quickly under attack (Epstein). The industry regularly points to animal tests as proving product safety for humans, but when they yield unfavorable results the use of animals ceases to be good science.

Numerous false purportedly scientific statements have been made by the industry, directly or through closely controlled proxies. This goes back a long way. In 1925, shortly after a conference in which numerous public health authorities and scientists gave evidence on the poisonous effects of the use of lead in gasoline, Dr. Emery Hayhurst, a paid consultant to Ethyl Corporation, wrote that scientific evidence shows that leaded gasoline affords “complete safety as far as the public health is concerned.” The cigarette company leaders have sworn under oath that they believe cigarettes not to be addictive, whereas internal documents state that “We are...in the business of selling nicotine, an addictive drug.” In 1996, Borden stated, falsely, that “Various studies over a period of years demonstrate that formaldehyde neither causes asthma nor has an effect on asthmatics different from its effects on persons who are not asthmatics.”

More serious than individual lies is the fact that the rich chemical industry can dominate science important to its interests by buying up most of the experts. Of scientists working on insecticides, 85 percent of them work for industry, 4 percent for the government, and 11 percent in universities without industry contracts. This allows industry to define what is worked on, and much of it is to find defenses for what industry wants to sell. To a remarkable degree, industry-hired scientists come to conclusions sought by their employers. Even VC was found safe by an industry-funded study by the University of Louisville’s Vinyl Chloride Project (Epstein). Fagin and Lavelle show that of 43 studies of the safety of four major insecticides financed by industry, 32 (74 percent) found them safe, whereas for 118 studies of the same chemicals not so funded only 27 (23 percent) had similarly favorable results (71, or 60 percent were distinctly unfavorable). A 1997 Canadian study of researchers on calcium channel blockers, a hypertension and angina drug, found a very strong correlation between an industry financial connection and a finding that the drug was beneficial.

The chemical industry, like tobacco, has established its own research institutes to produce good science. One, the Environmental Sensitivities Research Institute (ESRI), was founded to deal with multiple chemical sensitivity (MCS), an ailment afflicting great numbers, and brought into prominence because of its possible applicability to the symptoms of Gulf War veterans and women with silicone breast implants. One theory regarding MCS is that severe toxic exposure leads to a loss of chemical tolerance (Nicholas Ashford and Claudia Miller, Chemical Exposures: Low Levels and High Stakes, 1998). Another view is that the evidence “strongly suggests behavioral and psychogenic explanations for symptoms.” It should be no surprise that the last view is the “good science” espoused by ESRI.

As an illustration of outright lying in research, Monsanto’s 1979-80 study of workers who had been exposed to dioxin while making Agent Orange found no link to worker deaths. But during a worker lawsuit against Monsanto in 1984, defense lawyers discovered that four workers classified as “unexposed” in the dioxin study had been classed as “exposed” in another Monsanto study. This shift, confirmed by one of the authors under oath, affected the results—when corrected, the dioxin link had significant effects on worker deaths. Industry research has also employed other dirty tricks, like using too few animals, allowing too little time to elapse for symptoms to appear, and testing for only for one of numerous possible negative effects (as in silicone breast implants testing), pretending that the test of this single effect gives the definitive answer. Back in 1969, a commission on pesticides, reviewing 17 industry-sponsored studies of the carcinogenicity of DDT, concluded “that fourteen of these studies were so inherently defective as to preclude any determination of carcinogenicity.” But such studies serve the industry well.

 (3) Testing lab scandals. There have been a number of major scandals in which testing labs serving industry were found to have engaged in massive fraud. In 1976, the country’s largest toxicology agency, Industrial Bio-Test Laboratories, which did 35-40 percent of all the chemical and drug tests submitted to the EPA and FDA, was discovered to have faked evidence in hundreds of studies. A Monsanto employee had worked in Industrial Bio-Test for 18 months, before returning to Monsanto as manager of toxicology, and there was substantial evidence that Monsanto had known of fraud in studies submitted to EPA. In another case, Craven Laboratories, a top residue testing lab for Monsanto, DuPont, and other pesticide manufacturers, was found to have faked studies of 20 pesticides. This case was reported by the companies, but with a long time lag.

In 1997, it was disclosed that many pharmaceutical companies had relied on two clinical researchers to test mental health drugs, despite the fact that one of them had been involved ten years previously in a serious research fraud (in which a SmithKline drug was claimed superior to generics). The drug testing by this team was exposed in 1997 as faked or grossly deficient, but it took a long time to make this discovery, despite warning signs and supposed drug company monitoring. And in fact, one company’s inspector, who became suspicious of fraud, had been pulled off the inspection when the company committing the fraud complained (WSJ, August 15, 1997).  

(4) Criticisms of “bad science.” The industry has used a number of unscientific and opportunistic ploys to discredit science not conforming to industry needs. One trick has been to question animal testing in general or the usefulness of particular animals as meaningful for human effects, although, as noted, when such tests yield the right answers no questions are raised. A second trick is to question the validity of high dosage tests, especially useful in propaganda as they can be made to sound silly, although their scientific validity is generally accepted by serious investigators. A final trick is to focus attention on how cancer or other disorders are produced by the chemical in question—the mechanisms at work—thus deflecting scientific attention away from actual results and providing the basis for regulatory delay.

(5) Intimidation. While offering a steady stream of corporate junk science, the industry attacks every study (and author) contesting corporate truth with indignation and venom. Carson’s Silent Spring, toweringly superior in scientific spirit to 99 percent of industry-sponsored popular writings, was attacked as “emotional,” “sensational,” a “hoax,” a product of “food faddists, health quacks, and special interest groups” (this from the head of an industry-funded foundation), and based on “a belief that it is neither wise nor responsible to use pesticides in the control of insect-borne diseases” (a scientist, stating an outright falsehood). One major chemical company tried to prevent publication of Silent Spring by threatening libel actions against both its publisher and Audubon.

Industry spokespersons regularly attend presentations of critical scientists and attack them harshly. The industry will also go after these scientists at their places of employment: when scientists at the University of Florida came up with data showing damaging effects of Benlate, DuPont attempted to put pressure on them “via legislators” working on university administrators. Peter Breysse, a professor of environmental health at the University of Washington, who did critical work on formaldehyde’s health effects, found his talks monitored by the industry and industry agents approaching his school administration “to discuss the standards employed by Mr. Brysse in conducting his tests and publishing his findings concerning formaldehyde...”

The industry will also sue and threaten researchers challenging their interests. In 1987, Monsanto threatened to sue Karim Ahmed, a biochemist with the National Resources Defense Council, who had been an effective witness against the company in hearings on its pesticide alachlor, claiming that he had disclosed proprietary information on the product obtained as a member of the EPA’s Science Advisory Board. In 1991, Peter Montague, editor of the invaluable Rachel’s Environmental & Health Weekly, and the Environmental Research Foundation, were sued for defamation by Bill Gaffey, the Monsanto researcher who had doctored the evidence on dioxin and Agent Orange. Gaffey had no case, which was terminated in 1996 at Gaffey’s death, but this is an excellent and costly lesson to spokespersons for bad science.

Industry’s most brutal intimidating tactics are used against victims of its products, who can expect to have all of their personal problems and history raked in public as the industry seeks to show that it couldn’t be formaldehyde, atrazine, alachlor or any other of industry’s safe products that explain their painful symptoms.

Basic to controlling regulation is limiting regulatory resources, but almost as important is getting “responsible” regulators in office, and shaping regulatory law and rules to allow delay and limit regulatory action. It is one of the classics of regulatory history that the ICC was generously funded for many decades because it served so well the interests of the regulated railroads; whereas agencies not “captured” are under constant pressure as the regulated industries seek to bully them into friendliness or render them ineffective by shortage of resources.

Ronald Reagan’s cutback of regulatory budgets and appointment of pro-industry regulators, and the Gingrich cohort victory of 1994 and follow-up attack on the EPA and FDA, were responses to chemical and other industry demands and were greeted enthusiastically by industry. This was producer sovereignty showing its muscle and shaping regulation through the political process.

Reagan slashed the EPA budget sharply, and Bush and Clinton returned it to its pre-Reagan level, while greatly enlarging EPA responsibilities. This serves producers extremely well: a strapped EPA cannot do much research, cannot investigate many abuses, cannot afford much litigation, and must cooperate with industry to get essential information and any modest policy action response. It does not have the resources to press industry very hard. It cannot test the thousands of chemicals grandfathered under the 1976 act, and it will call upon industry to test these only when subject to a challenge. When that happens, the industry benefits from the weak legal position of the EPA (and public), as well as the limited EPA resources and excessive influence of industry on the EPA itself.

Contributing greatly to EPA’s ineffectiveness is the requirement in the 1976 law that the EPA weigh costs against benefits, and seek the regulatory course “least burdensome” to industry. These gigantic loopholes work well for the chemical industry as it can put up endless studies proving excessive burdens on itself and benefits of its poisons, with the result that “the EPA has been able to muster proof to overcome the cost-benefit test for only nine chemicals in the law’s 20-year history” (Fagin-Lavelle, who give detailed analyses of how industry has been able to keep alachlor, atrazine, formaldehyde, and perc on the market over many decades). In 1991 a court even threw out EPA’s ban on products containing asbestos, even after a decade-long EPA investigative effort, based on its alleged failure to meet the cost-benefit test.

When the industry is challenged by citizen complaints of damage or independent studies showing ill effects, it does its own research, and by hook or by crook its “good science” shows its products to be safe. And its lobby muscle, the legal loopholes it can exploit, and the uncertainties created by its own research allow it to paralyse the EPA. When independent studies contradict its claims of safety, as with a series of powerful Italian and Hungarian reports showing the hazards of atrazine, Ciba-Geigy produced a mountain of criticisms of these studies, unconvincing to outsiders, but again sufficient to wear down the EPA and keep it at bay.

Pesticides are supposedly regulated by limits on “tolerances” imposed by the EPA, which, as Rachel Carson pointed out in 1962, amounts to “deliberately poisoning our food, then policing the result.” But the tolerances are not fixed with an exclusive or even primary eye on public health, but have given great weight to field measurements of residues found in farm practice. No studies have been made of cumulative or interactive health effects in fixing tolerance values, and it was only in 1993, when a National Research Council report on Pesticides in the Diets of Infants and Children was published, that any serious attention was paid to the fact that the tolerances ignore the heavier ingestion rates and sensitivities of children. Such problems can be overlooked when they might interfere with the convenience of the sovereign producers.

Adding to the nullification of regulation is the power of industry through direct and indirect influence on the regulators. The regulators will get industry support on budgets and reappointments if they are cooperative, and they will find life pleasanter if they don’t cross industry (as David Kessler did as head of the FDA). They will also be wined and dined at industry expense, and may find remunerative work after their stint in government. Fagin and Lavelle report that 18 of 40 EPA officials who left high level jobs in toxics and pesticides over a recent 15-year period went to work for chemical companies, and “virtualy all the major chemical manufacturers employ former toxic regulators,” a revolving door that “is perhaps the chemical industry’s greatest weapon in its effort to stifle regulation.”

Other government bodies, like the committees on agriculture and departments of agriculture have also been extremely close and responsive to the chemical industry. Ralph Nader once tagged the U.S. Department of Agriculture as the Department of Agribusiness. That department, and those of state governments, have long been promoters of pesticides, and their hostility to Rachel Carson was as intense as that of the chemical industry itself. Another manifestation of subservience to the industry, observable throughout government, and extending to industry-dependent science, has been the focus on “lifestyle” and personal behavior as the route to dealing with the cancer “epidemic in slow motion.” In research and policy recommendations, “The environment, it seems, keeps falling off the cancer screen,” as Steingraber puts it. This fits well a model of producer sovereignty

 

Next month: Corporate Junk Science & The Media