Last week, 2007 chemical newsmaker 1,4-butanediol  made it back on the front page with a US Court of Appeals for the Seventh Circuit ruling on a lawsuit involving  1,4-butanediol  contaminated children’s toy ‘Aqua Dots’ (left).   In 2007, Aqua Dots contamination story first hit the news when Australia banned the product.  The adhesive 1,5-pentanediol was normally used in Aqua Dots, but 1,4-butanediol  was mistakenly used in the toy's manufacturing process.  The one methylene group (‒CH₂‒) difference between 1,5-pentanediol  and 1,4-butanediol  (below)  led to Aqua Dots going from the most popular toy of 2007 to the most recalled toy of 2007-2009. 

Why would using a chemical with one less a ‒CH₂‒ cause such trouble?  As explained by Molecule of the Day back in 2007, 1,4-butanediol  is converted to ɣ-hydroxybutyric acid by two of alcohol metabolism enzymes (Figure 2) when ingested. 

Most people know ɣ-hydroxybutyric acid by its abbreviation ‘GHB’, one of the so-called “date rape drugs”.  GHB is a central nervous system (CNS) depressant, denoted by the Drug Enforcement Agency (DEA) as a Schedule I controlled substance. The effects of GHB include euphoria, drowsiness, decreased anxiety, confusion and memory impairment.  Because our bodies can easily convert 1,4-butanediol  to GHB, 1,4-butanediol is also heavily regulated. 

Aqua Dots weren’t meant to be eaten, but as noted by the Seventh Circuit… 

Although the directions told users to spray the beads with water and stick them together, it was inevitable  given the age of the intended audience and the beads’ resemblance to candy… that some would be eaten.

A group of US parents served the maker and distributers of Aqua Dots were hit with a class action lawsuit.  The plaintiffs, whose kids were not harmed by the contaminated toy, sought a full product refund and punitive damages.  The plaintiffs’ suit hit a speed bump when the district court declined to certify the class.  Last Wednesday brought another road block when the Seventh Circuit affirmed the lower court’s decision, with some differences in legal reasoning.  The Seventh Circuit gave the class a no-pass for what seems* to be three reasons…

1. The plaintiffs, who never sought refunds via the product recall, could have and still can.
2. As they’ve previously ruled, a “…nationwide consumer class was not manageable, and  thus  could not be  certified, when it would depend on multiple states’ laws.”
3. There is no monetary benefit to passing this class.  Follow the Seventh Circuit’s logic…

There would be serious problems of management apart from the variability of state law. As we have mentioned already, individual notice would be impossible, which would make it hard for class members to opt out.  No one knows who bought the kits.  No one knows who used them without problems; this would make it difficult if not impossible to determine who would be entitled to a remedy.  The per-buyer costs of identifying the class members and giving notice would exceed the price of the toys (or any reasonable multiple of that price), leaving nothing to be distributed.  The principal effect of class certification, as the district court recognized, would be   to induce the defendants to pay the class’s lawyers enough to make them go away; effectual relief for consumers is unlikely.

The plaintiffs could appeal the US Supreme Court.  I’m not a lawyer*, but based on the Seventh Circuit's opinion, this Aqua Dots suit isn’t likely to hold much water with The Nine.  I think this particular Aqua Dots suit has run out of steam.

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^*I’m a chemist with a PhD, not a lawyer with a JD.  Thus, I am not a legal scholar.