The Toxicity of Low-Dose Chemical Exposures: A Status Report and a Proposal, Reviewing Carl Cranor, Legally Poisoned: How the Law Puts US at Risk from Toxicants

Abstract

There is no general requirement in U.S. law that manufacturers of chemicals test for the environmental and health effects of their products. As a result, firms can forego testing and then, in disputes over toxicity, argue that no harm has been proven. However, we know that environmental factors are important contributors to many diseases. Carl Cranor's LEGALLY POISONED: HOW THE LAW PUTS US AT RISK FROM TOXICANTS outlines recent scientific breakthroughs that have substantial implications for the market and for law. Some low level chemical exposures in utero and in early childhood have been linked to diseases that occur later in life; in the field of epigenetics, there are indications that some environmentally induced health effects persist into later generations, without changes in genetic material.

Cranor proposes that the act of exposing people to untested potential toxicants be considered a dignitary tort, an offensive battery. Recognition of the battery action in this context would provide an incentive for manufacturers to either perform basic toxicity testing. This is what the law already requires for pharmaceuticals and pesticides and what the European Union is now imposing on all commercial chemicals in its market. Recognizing a common law obligation to test suspect chemicals for toxicity would normalize the duties of U.S. chemical manufacturers.

This review outlines highlights of the research that Cranor describes and reports briefly on recent developments in chemicals regulation and legislative reform. It then discusses the use of the offensive battery action in this context. Offensiveness in the law of battery is judged by a community standard. Thus it is a defense to the action that the offensive contact was the kind of ordinary touching that is customary and reasonably necessary to daily life. If anyone has doubted it, sociological and cognitive research shows that exposure to untested chemicals is not acceptable to ordinary people. The common law of offensive battery provides an important alternative to the regulatory risk-management frame.