1 See, e.g., Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982). There, plaintiffs, whose mothers had ingested DES during pregnancy, sued to recover damages for emotional distress caused by the increased statistical likelihood that plaintiffs would contract adenosis or clear-cell adenocarcinoma. The court held that a claim for negligent infliction of emotional distress would not lie until the plaintiffs actually suffered physical harm manifested by objective symptomatology.

2 For example, in Pearl v. Allied Corp., 566 F. Supp. 400 (E.D. Pa. 1983), the court held that plaintiffs’ complaint seeking recovery for damages caused by Urea Formaldehyde Foam Insulation did not fail to state a claim simply because it failed to allege any presently detectable physical injury or malady from which plaintiffs suffered. The court also upheld the complaint's claim for damages for diminution in the quality and value of plaintiff's homes due to the hazardous nature of the UFFI installed there.

3 The Consumer Product Safety Commission denned UFFI as: “any cellular plastic thermal insulation material which contains as a component chemical, formaldehyde, formaldehyde polymers, formaldehyde derivatives, or any other chemical from which formaldehyde can be released.” 16 C.F.R. § 1306.2(b) (1982).

4 Id.; 6 Colo. Admin. Code § 1010-17(l)(e) (1980).

5 47 Fed. Reg. 14,393 (1982); see also Boston Globe, Oct. 31, 1983, at 16, col. 1. But see Appendix I, Brief for the Commissioner of Public Health [hereinafter cited as Brief for the Commissioner] at 116; Borden, Inc. v. Commissioner of Public Health, 388 Mass. 707, 448 N.E.2d 367 (1983), cert, denied 104 S.Ct. 345, suggesting it may be impossible to ascertain the number of UFFI insulated homes.

6 47 Fed. Reg. 14,393 (1982).

7 Brief for the Commissioner, supra note 5, at 73.

8 Id. at 79 (emphasis in the original).

9 Id. at 79-80.

10 Gulf South Insulation v. United States Consumer Product Safety Commission, 701 F.2d 1137, 1140 (5th Cir. 1983).

11 Id.

12 16 C.F.R. § 1306.3(a)(l) (1982); see generally Ashford, Ryan Caldart, A Hard Look at Federal Regulation of Formaldehyde: A Departure from Reasoned Decisionmaking, 7 Harv. Envtl. L. Rev. 297 (1983) [hereinafter cited as Ashford]; Brief for the Commissioner, supra note 5, at 147.

13 16 C.F.R. § 1306.3(a)(2) (1982); see Brief for the Commissioner, supra note 5, at 93.

14 Briefforthe Commissioner,.supra note 5, at 91;.see also 16C.F.R.§ 1306.3(a)(2) (1982).

15 Brief for the Commissioner, supra note 5, at 91.

16 47 Fed. Reg. 14,367 (1982).

17 44 Fed. Reg. 12,081 (1979).

18 47 Fed. Reg. 14,367-68 (1982).

19 Id. at 14,368.

20 The Commission voted 4 to 1 to ban UFFI. 47 Fed. Reg. 14,366 (1982).

21 Id. at 14,366.

22 Id. at 14,367.

23 Id.

24 Id. at 14,381.

25 Id. The Committee found that “even at concentrations of formaldehyde gas below 0.25 ppm, somewhat less than 20 percent of the population may experience some degree of irritation” and “recommended that the levels of formaldehyde in indoor residential air be kept at the lowest practical concentration.” Id.

26 Id.

27 Id. at 14,382.

28 Id. at 14,369.

29 Id. Specifically, the rats developed squamous cell carcinoma.

30 46 Fed. Reg. 11,191 (1981). Although the intended concentration was 15 ppm, the actual overall concentration averaged 14.3 ppm. 47 Fed. Reg. 14,370 n.3 (1982).

31 47 Fed. Reg. 14,370 (1982).

32 Id. at 14,369.

33 Id. at 14,370.

34 Id.

35 These results are comparable to those of the CUT study in which 37 of 240 rats exposed to 14.3 ppm of formaldehyde developed nasal cancer after the same length of time. Id. at 14,371.

36 Id. at 14,372.

37 Id.

38 Id. at 14,377 (also referred to as the Franklin/Oak Ridge Labs data).

39 Id. at 14,408.

40 Id.

41 Id. at 14,407.

42 Id. at 14,409.

43 Id. at 14,372.

44 Gulf South Insulation v. United States Consumer Product Safety Commission, 701 F.2d 1137, 1142 n.8 (5th Cir. 1983).

45 16C.F.R.§ 1306.1(a) (1982). The Commission acte.d under §§ 8 and 9 of the Consumer Product Safety Act, 15 U.S.C. §§ 2057 and 2058 (1982). In 1980, the Canadian Minister of Consumer and Corporate Affairs banned the use of UFFI in Canada. Cohen, The Public and Private Law Dimensions of the UFFI Problem: Part 1, 8 Canadian Bus. L.J. 3 0 9 (1983-84).

46 47 Fed. Reg. 14,413 (1982).

47 701 F.2d 1137 (5th Cir. 1983).

48 Id. at 1147-48. To be valid, a rule promulgated under the Consumer Product Safety Act must be supported by substantial evidence on the record taken as a whole. 15 U.S.C. § 2060(c) (1982). The court also held that the Commission's decision to ban UFFI under the Consumer Product Safety Act was improper and that any further attempts to regulate UFFI would have to be made under the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261 to 1276 (1982), unless the Commission could substantiate its decision to proceed under the CPSA with the findings required by § 2079(d) of that act. 15 U.S.C.A. § 2079(d). Gulf South, 701 F.2d at 1149-50. Consequently, the court's review of the CPSC's decision under the substantial evidence test could be construed as mere dicta.

Under § 2079(d) of the CPSA, a risk of injury associated with a consumer product, which could be eliminated or reduced sufficiently under the Federal Hazardous Substances Act, may be regulated under the CPSA “only if the Commission by rule finds that it is in the public interest to regulate such risk of injury under this chapter.” 15 U.S.C. § 2079(d) (1982).

The CPSC found that, as required by § 2079(d), because of the the complex and lengthy nature of the rulemaking proceeding that would be required under the FHSA it would be in the public interest to regulate UFFI under the CPSA. The Fifth Circuit rejected this contention. The court stated that “if the due process procedures mandated by the Federal Hazardous Substances Act justify discarding it, the Commission would never have to use i t …. Rulemaking under the Consumer Product Safety Act is to be the exception, not the rule.” Gulf South, 701 F.2d at 1149-50.

Whether the Fifth Circuit was correct in its interpretation of § 2079(d), however, is debatable. The initial amendment in the Senate would have left it to the Commission to determine when to use which act. The Senate report stated, “The bill would allow products which may be regulated by the Commission under one of the transferred acts to be regulated under the provisions of the Consumer Product Safety Act upon a determination by the Commission that such action is in the public interest. In some circumstances, the Consumer Product Safety Act may provide a more preferable regulatory scheme.” S. Rep. No. 94-251 94th Cong., 2d Sess., reprinted in 1976 U.S. Code Cong. Ad. News 1003. The “only … by rule” language was added in conference apparently only to stress that the determination must be made by rule. As the District of Columbia Circuit pointed out, “despite the negative language of this amendment, it broadens the CPSC's jurisdiction under the CPSA by permitting it in its sound discretion to regulate products under that act which formerly would have been subject to regulation exclusively under the FHSA or other acts.” Forester v. Consumer Product Safety Commission, 559 F.2d 774, 784 n. l l (D.C. Cir. 1977). Nothing indicates that rulemaking under the Consumer Product Safety Act was meant to be the exception rather than the rule as the Fifth Circuit stated.

49 Id. at 1145.

50 Id. at 1146.

51 Id.

52 Id. at 1146.

53 Id.

54 Id. at 1147.

55 Id.

56 Id.

57 Id. at 1148.

58 Id.

59 Id.

60 It is not altogether clear whether the CPSC figure of “somewhat less than 20 percent“ was meant to be a threshold figure or an approximation. The court, however, chose to use the figure as a threshold. Id.

61 Id.

62 569 F.2d 831 (5th Cir. 1978).

63 Id. at 838.

64 Id.

65 Hercules, Inc. v. EPa. 598 F.2d 9 1, 106 (D.C. Cir. 1978).

66 Ashford, supra note 12, at 367. 67 Hercules, 598 F.2d at 107.

68 Forester v. Consumer Product Safety Commission, 559 F.2d 774, 788 (D.C. Cir. 1977).

69 R.I. Gen. Laws § 6-38-4(1) (Michie S u p p. 1983); N.Y. G E N. B U S. Law § 391-i(l) a n d (2) (McKinney Supp. 1982); Minn. Stat. Ann. § 325F.18 s u b d. l (West 1981).

70 6 Colo. Admin. Code § 1010-17(4) (1980); Cal. Admin. Code tit. 2 0 § 1553(m)(2)Q) (1982). Although California prohibited the sale of UFFI, Cal. Admin. Code tit. 20 § 1553(m)(l), it did provide an exemption for manufacturers who were certified as meeting a product standard. Cal. Admin. Code tit. 20 § 1553(m)(2). The final requirement for exemption was the provision of the prescribed warning.

71 Cal. Admin. Code tit. 20 § 1553(m)(2)U) (1982).

72 R.I. Gen. Law § 6-38-4(1) (Michie Supp. 1983).

73 6 Colo. Admin. Code § 1010-17(4)(e) (1980).

74 N.Y. Gen. Bus. Law § 391-i(2) (McKinney Supp. 1982).

75 Conn. Gen. Stat. Ann. § 29-277(c) (West 1984). Although Colorado allows installation of UFFI in homes as long as a warning is provided, it did ban further installations of UFFI in schools and certain other institutions. 6 Colo. Admin. Code § 1010-17(3) (1980).

76 Cal. Admin. Code tit. 20 § 1555(m)(2)(J) (1982); Mass. Admin. Code tit. 105 § 650.020 (1980).

77 Cal. Admin. Code tit. 20 § 1553(m)(2)(J) (1982).

78 N.J. Stat. Ann. § 17:1B-5.1 (West Supp. 1983-84) (Repealed by 1983 N.J. Laws Ch. 530 § 48, Effective January 17, 1984).

79 Id.

80 Id.

81 Id.

82 Mass. Admin. Code tit. 105, § 650.020 (1980).

83 Id. § 650.222(9)(a) (1984).

84 The amended regulations were promulgated June 30, 1984 replacing the original regulations promulgated December 31, 1980.

85 Mass. Admin. Code tit. 105, § 650.222(2) (1984).

86 Id. §650.222(2)(d)(l).

87 Id. § 650.222(6)(e).

88 Id. § 650.222(6)(f).

89 Id. § 650.222(6)(i).

90 Id. §650.222(1).

91 Id. § 650.222(7)(a). See Mass. Gen. Laws Ann. ch. 30A § 14 (West 1979).

92 Id. § 650.222(8)(a).

93 Id. § 650.222(9)(a).

94 Id. § 650.222(9)(b)(3).

95 Id. §650.222(12).

96 Id. § 650.222(3)(b)(2).

97 Id. § 650.222(9)(b)(7).

98 Id. § 650.222(17).

99 Id. § 650.222(B)(2)(b) (1980).

100 Id. §650.222(E)(l).

101 Id. § 650.222(E)(4).

102 The Minnesota statute provides that it is not effective if the Commissioner of Health determines that a significant health problem does not exist. Minn. Stat. Ann. § 325F. 18, subd. 5 (West 1981). The Commissioner determined that a significant health problem does exist on May 22, 1980. Id. at n.l.

103 Minn. Stat. Ann. § 325F.18, subd. 4 (West 1981).

104 Id.

105 7 Minn. Code Agency, R. § 1.448(c)(2) (1982).

106 Minn. Stat. Ann. § 325F.18, subd. 4 (West 1981).

107 Id.

108 See supra notes 69-74 and accompanying text.

109 The CUT study on which the CPSC primarily relied was not completed until June, 1980, 47 Fed. Reg. 14,369 (1982), and the Federal Panel on Formaldehyde's review of the study was not completed until November, 1980. Id. at. 14,370. The results of the first New York University study were released in August, 1981, Id. at 14,418, and the second NYU study validating the results of the first was still being conducted in April, 1982, when the CPSC banned UFFI./rf. ai 14,371. This validation study was necessary because the rats in the first NYU study had been exposed to a mixture of gaseous formaldehyde and hydrogen chloride. The researchers were unable to determine whether the rats’ tumors were induced by formaldehyde, by bis (chloromethyl) ether (BCME), a product of the chemical reaction of formaldehyde and hydrogen chloride, or by the interaction of all three chemicals. Previous experience with BCME suggested that formaldehyde was probably the causal agent. The results of the second study, in which the rats were exposed only to formaldehyde and again developed malignant tumors, proved this hypothesis correct. Ashford, supra note 12, at 318.

The Colorado, Rhode Island and New York warnings became effective in 1980. R.I. Gen. LAWS § 6-38-4 (Michie Supp. 1984) (added, 1980 R.I. Pub. Laws ch. 194, § 1); N.Y. Gen. Bus. Law § 391-i (McKinney Supp. 1985) (added, 1980 N.Y. Laws ch. 213, § 1, effective June 9, 1980); 6 COLO. Admin. Code § 1010-17 (1980). The Minnesota warning statute was enacted in 1980, although it did not become effective until January 1, 1981. Minn. Si At. Ann. § 325F.18 (West 1981). (The warning provisions became effective January 1, 1981. The repurchase provisions became effective April 24, 1980. 1980 Minn. Laws ch. 594, § 12). The California warning, on the other hand, did not become effective until 1982, Cai.. Admin. Code tit. 20 § 1553 (1982) (Register 82, no. 44-10/30/82), after legislation was enacted enabling the State Energy Resources Conservation and Development Commission to adopt regulations pertaining to UFFI. Cal. Pub. Res. Code § 25911 (West 1985) (added by 1982 Cal. Stat. ch. 26 § 6 effective February 6, 1982).

110 While it is possible that legislative efforts to strengthen the warnings may have been seen as unnecessary in light of the CPSC ban, the final CUT rat study results showing that formaldehyde causes cancer were available well before the CPSC ban was promulgated. None of the warnings were amended. Nor have any been amended since 1983, when the federal ban was struck down. Had there been some easier way than resort to the legislative process to update these warnings, it is possible that they might have been changed to include a warning about formaldehyde's carcinogenicity.

111 California requires that the warning be printed in at least eight point type size. Cal. Admin. Code tit. 20 § 1553(m)(2)(J) (1985), while New York requires that its required notice be printed in at least ten point type, N.Y. Gen. Bus. Law § 391-i(3) (McKinney Supp. 1985).

112 Colorado requires that its warning “appear prominently and conspicuously” and “be printed in legible, bold face type.” 6 Colo. Admin. Code § 1010- 17(4)(d) (1980). Rhode Island requires that its warning be “conspicuously include[d]” in any insulation contract. R.I. Stat. Ann. § 6-38-4 (Michie Supp. 1985). The Minnesota statute requires that the required disclosure “be made clearly and conspicuously… in a manner designed to attract the attention of a prospective buyer or user.” Minn. Stat. Ann. § 325F.18 subd. 2 (West Supp. 1985).

113 “[A]t the beginning of any sales contract,” N.Y. Gen. Bus. Law § 391-i(3) (McKinney Supp. 1985). “[O]n the same page as the signature of the purchaser and before the signature of the purchaser,” 6 Coi.o. Admin. Codi. § 1010- 17(4)(d) (1980).

114 Due to the nature of the legislative process, it is possible that enactment of stronger measures, even if believed necessary by some legislators, may not have been possible. In that case, given the choice between a warning and no action at all, a warning is certainly the most effective remedy available.

115 See Weisz v. Parke-Bernet Galleries, 67 Misc. 2d 1077, 325 N.Y.S.2d 576 (N.Y. Civ. Ct. 1971), rcv'rf 77 Misc. 2d 80, 351 N.Y.S.2d 911 (N.Y. App. Term 1974).

116 Allied Van Lines v. Bratton, 351 So. 2d 344 (Fla. 1977).

117 K. Li.EWK.i.i.YN, Tut: Common Law Tradition at 362-63, quoted in J. Dawson, W. Harvey S. HK.Ndeuson, Contracts 4th ed. (1982).

118 47 Fed. Reg. 14,407 (1982).

119 47 Fed. Reg. 14,407 (1982); see Brief for the Commissioner, supra note 5, at 139.

120 6 Colo. Admin. Code § 1010-17(4)(e) (1980).

121 2 F. Harper F. James, Law of Torts § 28.7 (1956).

122 Wade, The Effect in Product Liability of Knowledge Prior to Marketing, 58 N. Y. U. L. Rev. 745 (1983).

123 Brief for the Commissioner, supra note 5, at 139.

124 Wade, supra note 122, at 746.

125 47 Fed. Reg. 14,397 (1982); see Cal. Pub. Res. Code § 25923, Legislative finding (e) (West 1982).

126 Cal. Pub. Res. Code § 25911, Legislative finding (a).

127 The settlement in the Love Canal Case, for instance, took six years to be reached. The suits of those who have chosen to continue the fight are still pending. N.Y. Times, February 20, 1985, at Bl, col. 2.

128 N.J. Stat. Ann. § 55:14k-2 (West Supp. 1985) (Senate County and Municipal Government Committee Statement, Senate, No. 1301—1982 N.J. Laws ch. 206). See Pearl v. Allied Corp. 566 F. Supp. 400 (E.D. Pa. 1983).

129 47 Fed. Reg. 14,399-400 (1982).

130 In cases where the expected value of harm from a particular substance is very low, loan programs, or even no program at all would be a sensible response since the cost of any program would likely outweigh any benefit that would accrue from it. In such a situation, only very risk-adverse individuals would find the costs of removal of the offending substance worthwhile. These people should not expect society to share the costs since the expenditure is only beneficial because of some idiosyncracy peculiar to them. UFFI, however, poses enough of a risk that the expected value of the harm arising from its use does exceed the cost of preventing that harm from occurring. Consequently, a program to finance the removal of UFFI would yield net benefits. Since we all share in the benefits of a healthier society through lower health care costs, higher worker productivity, etc., a removal program financed, at least in part by the state, is justified.

131 Minn. Stat. Ann. § 325F.18 subd. 4 (West 1981).

132 See supra note 105 and accompanying text.

133 See supra note 25.

134 Minn. Stat. Ann. § 325F.18 subd. 4 (West 1981).

135 47 Fed Reg 14,383 (1982).

136 In order to ensure compliance, the rule provides that “[t]he level of formaldehyde in a housing unit shall be measured no more than two weeks prior to installation and shall be measured again within 30 days after the installation of the [UFFI].” 7 Minn. Code AGen.Y R. § 1.448 (F)(l) (1982). The testing must be carried out at an indoor temperature of between 70 and 85 degrees and the formaldehyde levels must then be corrected to a 78 degree condition using a specified formula. Id. § 1.448(e)(l). Furthermore, the housing unit must be prepared for both pre- and post-installation measurements as follows:

Id. § 1.448(E)(2)(a)-(c).

137 Minn. Stat. Ann. § 325.18 subd. 4 (West 1981).

138 Id.

139 Mass. Admin. Code tit. 105, § 650.222(6)(i) (1984).

140 Id. § 650.222(6)(l) and (7)(a).

141 Id. § 650.222(9)(b)(10).

142 Brief for the Commissioner, supra note 5, at 146.

143 Mass. Admin. Code tit. 105, § 650.222(B)(2)(b)(l) and (2) (1980).