Chocolate, Coca-Cola, and Fracturing Fluid: A Story of Unfettered Secrecy, Toxicology & the Resulting Public Health Implications of Natural Gas Development

51 Pages Posted: 11 Jun 2015

See all articles by Brie D. Sherwin

Brie D. Sherwin

Texas Tech University School of Law; Department of Public Health

Date Written: March 15, 2015

Abstract

As hydraulic fracturing has become the new darling of energy production and America’s hope for energy independence, health care professionals and related organizations, like the Nobel peace prize-winning Physicians for Social Responsibility, have expressed concern over the industry’s use of the trade secret exemption when it comes to fracturing fluids. Health care professionals are voicing concerns about how the secretive nature of trade secret protections and even current legislation (or lack thereof) are stifling their ability to treat patients complaining of symptoms associated with exposure to these chemicals. Without information on what is in the fluids and at what concentrations, toxicologists, epidemiologists, and physicians alike are wondering how exactly to characterize risk and properly treat those who are complaining of exposure-related health problems.

The nature of trade secret protection has always been broad and inclusive, protecting the proprietary nature of components and processes, thus allowing companies to have a competitive edge over competitors. Oil and gas companies invoke this protection, claiming that disclosure of even some of the names of the chemical components may hurt them competitively. Ironically, many companies, most notably soft drink giants, enjoy trade secret protection yet disclose the “secret ingredients” in their products. Should trade secret protection be treated as an unquestioned right that can simply be invoked even when there are far-reaching environmental and concerns about public health? In that light, this article will address the impact of the trade secret on a physician’s duty to treat patients when faced with limitations on information dissemination. This article will also explore the fundamental nature of trade secret protection and whether misuse is occurring when companies claim trade secret protection of fracturing fluid products. Finally, this article will review current regulatory loopholes in the reporting process and examine the question of whether there is an existing common law doctrine that addresses the misuse of this protection.

Keywords: Hydraulic Fracturing, Trade Secret, Public Health

JEL Classification: I18, K32

Suggested Citation

Sherwin, Brie DeBusk, Chocolate, Coca-Cola, and Fracturing Fluid: A Story of Unfettered Secrecy, Toxicology & the Resulting Public Health Implications of Natural Gas Development (March 15, 2015). Ohio State Law Journal, Vol. 77, 2016, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2616550

Brie DeBusk Sherwin (Contact Author)

Texas Tech University School of Law ( email )

1802 Hartford
Lubbock, TX 79409
United States

Department of Public Health ( email )

Lubbock, TX
United States

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