JUDGE UPHOLDS ACGIH®'s RIGHT TO PUBLISH TLVs® UNDER THE FIRST AMENDMENT TO THE CONSTITUTION
Cincinnati, Ohio — November 30, 2004 — The American Conference of Governmental Industrial Hygienists (ACGIH®), headquartered in Cincinnati, Ohio, has been named as a defendant in lawsuits filed in the United States District Court in Macon, Georgia. The initial case is captioned International Brominated Solvents Association and Aerosafe Products, Inc. v. ACGIH, Department of Labor (DOL), and Department of Health and Human Services (DHHS) and involves ACGIH®'s consideration of the following substances: 1-Bromopropane ("nPB" - n-Propylbromide), copper, silica and diesel exhaust ("DPM" - diesel particulate matter). The National Mining Association has filed a complaint to intervene in the first case but limited its concerns to silica, copper, and diesel exhaust.
The complaints allege that ACGIH® is about to publish or revise TLVs® for the substances involved and seek to enjoin ACGIH® from taking any action with regard to these substances. The complaints also allege that ACGIH® is a government advisory committee; that ACGIH® is required to follow the provisions of the Administrative Procedures Act (APA) but does not do so; and that ACGIH® has tortiously published false and misleading information about the products sold by plaintiffs and interfered with the plaintiffs' business.
Plaintiffs filed a motion for a temporary restraining order (TRO). ACGIH® opposed the TRO, claiming that under the First Amendment to the Constitution it has the right to publish its scientific opinions; that ACGIH® is not a Federal Advisory Committee; that ACGIH® is not a government agency and does not have to follow the APA; and that ACGIH® has not engaged in any tort or published false or misleading information. A hearing on the TRO was held on November 23, 2004. On November 26, 2004, the court denied the plaintiffs' request for a TRO.
In a comprehensive 21-page opinion, Judge Hugh Lawson addressed each of the issues raised by the plaintiffs. The Court concluded that:
- ?Plaintiffs do not have standing to bring an action directly under the Federal Advisory Committee Act (FACA).
- ?an injunction, if issued, would be a prior restraint on free speech and that ACGIH® is entitled to full constitutional protection against prior restraints.
- ?publication of the ACGIH® TLVs® was not commercial speech or government speech and that the TLVs® are fully protected by the First Amendment.
Judge Lawson stated that an injunction against publication of the TLVs®...."would amount to an abridgement of ACGIH®'s First Amendment speech rights."
The Court went even further and reviewed whether the plaintiffs had met the requirement for a TRO. The Court noted that there is a four-pronged test for granting either a TRO or a preliminary injunction and plaintiffs have to meet every one of the four prongs before an injunction can be granted. The first prong requires that plaintiffs show that there is a substantial likelihood that they will succeed on the merits. After analyzing the plaintiffs' claims under FACA, the Court concluded that ACGIH® is a private organization and not a government agency. Nor is it likely that ACGIH® is covered by FACA. Further the Court found that there is no likelihood that plaintiffs will succeed in their claims under the Georgia Deceptive Trade Practices Act. Since there was no likelihood that the plaintiffs would succeed on any of their claims, the Court denied the TRO without looking at the other three prongs of the test.
The nature of these complaints calls into question the freedom of any party to undertake independent scientific research and publish results. This threatens the credibility of the occupational hygiene profession and the ability of occupational hygienists to continue their work. Working with legal counsel, the ACGIH® Board of Directors, along with other dedicated volunteers and ACGIH® Staff have concluded that a vigorous defense of ACGIH® and its members is essential if they are to continue to progress in the cause of worker health and safety. Board Chair, Vickie L. Wells, MS, CIH, CSP, states, "The nature of the allegations presents a real threat to the ability of professional practitioners to fully protect workers based upon sound and thorough science. These claims are unfounded and are without basis. At stake is the right of any organization or group to express scientific opinions based on their reasoned evaluation and judgment. These cases threaten our right to free speech as granted in the First Amendment to our Constitution." Wells continued, "After careful consideration and with the advice of experienced legal counsel, we have concluded that a vigorous and thorough defense of ACGIH® and the IH profession is necessary. We stand by ACGIH® and the significant contributions it has made for over half a century. We stand by our policies, procedures, and processes. We stand by our recommended Threshold Limit Values, and the fairness and thoroughness of the system used in their development and dissemination." According to ACGIH® General Counsel, Steven John Fellman of Galland, Kharasch, Greenberg, Fellman & Swirsky, P.C. in Washington, D.C., "ACGIH® has acted within all legal requirements in developing, proposing, and publishing TLVs®. It has every right and responsibility to defend its position."
To stay abreast of the latest information on these legal proceedings, please visit our website at www.acgih.org.
ACGIH® Worldwide is a member-based organization that advances worker health and safety through education and dissemination of scientific and technical knowledge. ACGIH® is one of the industry's leading publications resources, with approximately 400 titles relative to occupational and environmental health and safety, including the renowned TLVs® and BEIs® book. For more information visit the ACGIH® website at www.acgih.org or call our Member Services Representatives at 513-742-2020.