When Trade Secrecy Goes Too Far: Public Health and Safety Should Trump Corporate Profits

Julie E. Zink • 20 Vand. J. Ent. & Tech. 1135

Abstract

This Article addresses the historical and ongoing use of trade secrets to withhold critical information from the public. Through its text and footnotes, the Article discusses the positives and negatives of trade secret protection; addresses historical and current examples of trade secret abuse; analyzes the inadequate solutions that have been tried and proposed; and, ultimately, recommends changing trade secret law by incorporating the precautionary principle into the definition of a trade secret to ensure that protection will no longer be available for information that endangers public health.

This Article is both timely and necessary, as the public is continually bombarded with new products about which critical information is withheld. In fact, an average of twenty new chemicals enter the marketplace each week. As a result, unknowing humans are acting as test subjects while companies, secreting away important information about the products’ impact on public health, rake in record profits. Drawing lessons from decades of past injuries, it is past time for the United States to borrow from our European neighbors and incorporate the precautionary principle into US trade secret law. Doing so will allow for protection of trade secrets while also maintaining public health. This Article provides a useful proposal for academics, legislators, courts, and practitioners to consider as they contend with the increased use of trade secrets and the numerous health hazards caused by trade secret products and processes.