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Teen Cosmetics Tested Positive for Asbestos

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Danny Katz of U.S. PIRG, a consumer advocate group, says after testing over a dozen products at the American accessories chain Claire’s, the group found that teen cosmetics tested positive for asbestos in three of the samples. In The Netherlands, Dutch health and safety authorities also found asbestos in two types of Claire’s cosmetics for young girls – a face powder and a contouring powder. Dutch authorities pulled the products from the shelves.

Katz elaborated by saying that it is unacceptable to have asbestos in these products. Asbestos, when inhaled, can lead to lung cancer and even to mesothelioma. “We need Claire’s to remove these products from the shelves and we need them to figure out how asbestos got in their products to begin with. We need Congress and the FDA to take action. We need to ban asbestos from beauty care products and makeup.”

Not the first time

Late in 2017 there were similar allegations concerning Claire’s carrying cosmetics containing asbestos in their stores. If they sell asbestos-containing products, many thousands of people could be exposed. The chain has 7,500 locations in 45 countries with approximately 17,000 employees.

Claire’s reply

In the current tests and in 2017, the Claire’s chain contracted additional testing facilities, which found no asbestos in the products cited. Claire’s maintains that the testing by the U.S. Public Interest Research Group (U.S. PIRG) is outdated and inaccurate.

“At Claire’s, customer safety is of paramount concern, and we pride ourselves in providing our customers with quality products that we stand by, so we wish to address a recent report that cosmetics sold by Claire’s may contain asbestos. We want to assure our customers that all of our products are safe and asbestos-free.”

“In addition, testing of more than 85 samples using the most up to date test methods has been conducted by independent laboratories both in the USA and Europe. In addition, several cosmetic products sold by Claire’s have been tested by Health Canada and the Dutch Human Environment and Transport Inspectorate (ILT). This extensive testing conducted by four separate laboratories has confirmed that these cosmetics products do not contain asbestos. In addition, all our powder-based cosmetics use the same base formulation, utilizing Merck certified asbestos-free talc, which is the same talc used in other well-known cosmetic brands.”

U.S. PIRG reply

“Claire’s incorrectly claims that our testing methods are unsound. Its accusations are misinformed at best, and seem to be designed to distract from the bottom-line: that Claire’s is selling makeup that contains asbestos to preteens. Claire’s has previously claimed that its products are free of asbestos, despite evidence to the contrary. While we have been transparent about our testing methods and results, Claire’s does not provide its own test results, or explain its own testing methodology. On balance, it is clear that Claire’s is trying to confuse the facts.”

“Our lab is accredited by the U.S. National Institute of Standards and Technology NVLAP program. The FDA used a lab on this accredited list for their cosmetics testing for asbestos (AMA Analytical Services) and we used another lab on the list, STAT Analysis Corporation.”

“When Claire’s was previously accused of selling makeup contaminated with asbestos, it pulled the products from the shelves. Based on our new test results, it should do the same now.”

What now?

The Dutch NVWA (health and safety group) did not withdraw products in 2017 because of assurances by the US Food and Drug Administration (FDA) that there was nothing wrong with the products cited. The products in the current tests were removed in The Netherlands as the Dutch inspectors found 2% to 5% asbestos in the face powder and .1% to 2% in the contouring powder. All products containing asbestos are banned in The Netherlands, and 55 other countries, because of the danger to health. The United States has not fully banned asbestos.

Claire’s filed for Chapter 11 bankruptcy protection for its US stores in March 2018 but is not planning to close any US locations.

Popcorn Lung in E-Cigarette Users A Possibility

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According to a Harvard study, a chemical, diacetyl, may cause a condition called Popcorn Lung in e-cigarette users. Popcorn lung was first observed in the early 2000s when workers at a microwave popcorn factory were sickened by breathing the chemical, used because of its buttery flavor.

Popcorn lung in e-cigarette users

E-cigarettes come in many flavors, making them appealing to teenagers as well as adults. Most users think these are a healthy substitute for smoking cigarettes. Unfortunately, they are misguided. The same chemical, diacetyl, that produced irreversible bronchiolitis obliterans and even death to workers in popcorn factories, is present in many of the flavored ‘juices’ of e-cigarettes.

Harvard researchers found that 39 of 51 e-cigarette brands contained diacetyl and, of the two other harmful chemicals present, 23 included 2,3 pentanedione and 46 contained acetoin. In total, approximately 92 percent of e-cigarettes tested had at least one of the three chemicals.

What is popcorn lung?

The scientific disease name, bronchiolitis obliterans, is actually a scarring of the lungs’ small air sacs. This scarring thickens and narrows the airways. Though the common disease name, popcorn lung, sounds harmless, it definitely is not. The devastating results are coughing, wheezing, and shortness of breath – similar symptoms of chronic obstructive pulmonary disease (COPD) – and can lead to death.

Why is this legal?

Once the effects on popcorn workers were discovered, diacetyl was removed from popcorn products. However, until the May 5th announcement by the Food and Drug Administration (FDA) that they will extend their oversight on tobacco products to include e-cigarettes, there was no FDA oversight. This announcement means that in August key provisions of the Family Smoking Prevention and Tobacco Control Act on sales, marketing, and manufacturing of e-cigarettes will be enforced, but there is a caveat. For three years manufacturers can test their products and complete FDA applications for review while their products can remain in the market.

The 2015 Harvard study concluded, “Because of the associations between diacetyl and bronchiolitis obliterans and other severe respiratory diseases observed in workers, urgent action is recommended to further evaluate this potentially widespread exposure via flavored e-cigarettes.”

While there are groups wanting more proof that there is actual danger, the American Lung Association thinks the danger is real, three years is too long, and the FDA should quickly require removing diacetyl and all other harmful chemicals from e-cigarettes.

Learn more

Even if you are still undecided about the effects of diacetyl in vaping, there are many other additives in e-cigarettes that are harmful, including nicotine, formaldehyde, carbonyl compounds, metals, propylene glycol, glycerol, fine particulate matter, and flavoring chemicals.

Here are two good links. For more public information on e-cigarettes and lung health and for a number of articles on how to quit – or help someone else quit – smoking.

Uber Self-Driving Car Kills Pedestrian

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The first case of a pedestrian killed by a self-driving car occurred in Tempe, Arizona. This technology is still in the experimental phase, however Uber self-driving cars are on the roads in Pittsburgh, San Francisco, and Toronto – as well as Tempe.

Are self-driving cars safer?

Increased safety was the initial premise for the existence of unmanned self-driving cars. One of the primary causes of automobile accidents is distracted driving. In a robotic car, that should not be a problem, but obviously there are issues to be addressed. Building systems to automatically react appropriately in unexpected situations is a difficult task.

What happened in Tempe?

In this case, the car did have a human in the car as a backup. It appears the car, a Volvo XC90, was going about 40 MPH on dry streets with clear weather at 10 p.m. on a Sunday. An investigation is ongoing since the safety driver did not appear impaired. The victim, a 49 year-old woman, was walking her bicycle in the street. Though this was the first accident involving a pedestrian, one of these autonomous vehicles collided with another car in March of 2017.

Safety measures in place

Because states are eager to encourage testing, there are few regulations in place – not only with Uber, but Waymo, Lyft and Cruise, owned by General Motors. Doug Ducey, governor of Arizona, said in 2017, “We needed our message to Uber, Lyft and other entrepreneurs in Silicon Valley to be that Arizona was open to new ideas.” Originally Arizona mandated a backup driver in the car, but recently that was changed to allow testing of unmanned self-driving cars. This leniency is to boost the economy by allowing a low regulatory environment.

California is on the cusp of allowing unmanned vehicles, but is still investigating the proposition. In its testing of manned self-driving cars, Waymo has produced statistics required by California. When a human has to take control, it’s called a disengagement. In just over a year, Waymo’s cars drove 350,000 miles with 63 disengagements. This averages approximately 5,600 miles between disengagement events, clearly demonstrating the need for more testing before widespread use of unmanned vehicles.

Michael Bennett, an associate research professor at Arizona State University, has been studying the reaction of the public to driverless cars and their artificial intelligence. His comment on the aftermath of the Tempe pedestrian incident reveal his conclusion, “We’ve imagined an event like this as a huge inflection point for the technology and the companies advocating for it. They’re going to have to do a lot to prove that the technology is safe.”

Who’s Fault is Injury from Self-Driving Car?

“Look for insurance companies to lobby for profound changes in state insurance requirements and state laws”, says Dallas lawyer, Ben DuBose. “However, in the Arizona Uber incident, there was a back-up driver in the car. So, there’s still a question of why the back-up driver didn’t disengage and potential liability for her. People will still need car auto insurance and will still have potential liability.”

At the same time, as we head into the self-driving car era, DuBose says to look for additional new legal theories to address the autonomous car features. Automobile manufacturers and software designers will face new product liability claims. As even Volvo Car Corp. Vice President, Anders Karrberg recently testified before Congress “[c]armakers should take liability for any system in the car. So we have declared that if there is a malfunction to the [autonomous driving] system when operating autonomously, we would take the product liability.”

Should Nursing Home Patients Have the Right to Sue?

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Imagine being admitted as a nursing home patient for rehab from an accident. While there you contract a potentially fatal disease solely the fault of inadequate care.

Maybe you have an elderly parent in another state. You determine that a nursing home close to their friends is the only option for your parent to get the care needed. Then you hear from a visitor that your parent is being neglected, or maybe physically, mentally, or emotionally abused.

In these, and other serious personal injury cases like them, you would generally want to sue – not only for the patient, but to let others know there’s a problem.

The arbitration clause

During the Obama presidency, a ruling from the Centers for Medicare and Medicaid Services (CMS) banned facilities that accept Medicare and Medicaid funds from requiring residents to sign pre-dispute arbitration clauses. This ban gave them the option to sue – a positive step for patients already stressed.

This ruling never took place due to a preliminary injunction by the American Health Care Association, the nursing home industry trade group. Now it’s possible there will be no option to go to trial due to a new rule by the Trump administration. Nursing homes would be able to continue the requirement for new residents to sign an arbitration clause. Refusal could mean no admittance.

The proposed new rule would require the agreement to be written in plain language, not legalese, with verification that the person understands. Kelly Bagby, a senior counsel with the AARP Foundation, does not think this makes it fair. “The ‘plain language’ requirement ‘gives with one hand the idea that it’s transparent, and takes away with another by saying ‘you don’t have a choice but to sign this.’”

The pros and cons of arbitration

Signing an arbitration clause in a contract – a common procedure at admittance – takes away the patient’s right to a trial. All conflicts must go through a third-party arbitration, generally more secretive than through a civil court, and awards to the plaintiff are up to 35 percent lower. To a population already in a stressful situation, signing this is often misunderstood or perceived as just one more piece of paper to sign.

There are supporters of arbitration. As Matt Webb, senior vice president of the U.S. Chamber of Commerce’s Institute for Legal Reform says, “arbitration is a system that is simpler, fairer, and faster for all parties concerned.” He goes further to say that “Studies basically show that if the arbitration agreement’s not done prior to a dispute arising, very few if anyone ever really agrees to go into arbitration at that point.”

This statement says a lot about the fairness of arbitration. If it’s so fair and simple, why wouldn’t a person agree without coercion?

What you can do

This is not a ruling – yet. If this concerns you, contact your U.S. representatives and senators and give them your opinion. “We the people” still have a voice.

DuBose Law Firm Celebrates 10th Anniversary

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In 2008 I did something I’d always dreamed of: hung out my own shingle. Since the late 1990s, I’d practiced law at one of the largest personal injury law firms in the nation. It was an invaluable experience representing the Greatest Generation, the Silent Generation, and Baby Boomers suffering from mesothelioma and asbestos lung cancer in courts across America. But ever since law school, I wanted to practice in a law firm like the one I clerked for in Lubbock, Texas: a small personal injury firm that provided legal services and personal attention to each client.

DuBose Law Firm 10th AnniversarySo, in June of 2008, a few months before the economy plunged into the Great Recession, I formed DuBose Law Firm. I’ve never looked back. What a decade it’s been and what a law firm we built. Just look at some of the milestones we achieved in our first 10 years:

●  Proudly represented asbestos victims across the United States
●  Successfully resolved cases for hundreds of clients
●  Tried cases before juries
●  Obtained appellate victories in the Supreme Courts of Louisiana and Missouri
●  Expanded our practice into two new areas: serious personal injury & employment/labor law
●  Opened a second office in New Orleans, Louisiana
●  Renovated our historic home office – The Adelfa B. Callejo Building – named in honor of the legendary Dallas civil rights icon who practiced law here
●  Community engagement – involved in local, state, and national bar associations as well as volunteering with Dallas schools and the community at large

Along the way, DuBose Law Firm grew to include a great team of attorneys, paralegals, and employees. My own family grew quite a bit as well. When we opened the office in 2008, my children were in elementary and pre-school. Now, my son is graduating from high school and our two girls aren’t far behind.

Throughout it all, DuBose Law Firm always stayed true to our core purpose: helping individuals who’ve been harmed. We strive to make a difference in our clients’ lives and in our society.

Just imagine what we’ll achieve in the next 10 years!

P.S. None of this would have been possible without the love and support of my wife and kids. They’ve been there for me all along the way.

DuBose Law Firm, PLLC
principal office address:
4310 N. Central Expressway
Dallas, Texas 75206
Phone: 214.389.8199
Fax: 214.389.8399
Sponsored by Attorney Ben DuBose, licensed in TX, OK, and PA