The majority of women who have developed ovarian cancer allegedly from using Johnson & Johnson’s talc-based baby powder are African American or minority women. African American women are more likely to use baby powder than white women, arguably, in part, because of historical marketing practices by Johnson & Johnson (J&J) that targeted minority women. Mississippi, the state with the highest African American population in the US—approximately 39%—sued J&J in 2014. According to MesoWatch.com, Mississippi’s Attorney General accused J&J of failing to disclose on two product labels the risk of ovarian cancer, in the suit.
Mississippi’s lawsuit against J&J can now proceed after an April 1 unanimous ruling by the state’s Supreme Court. The lawsuit alleges that J&J’s failure to disclose the risk of ovarian cancer on the talcum product labels violated the state’s Consumer Protection Act, constituting “unfair or deceptive trade practices.”
In May 2020, J&J announced it was discontinuing the sale of its talc-based baby powder in North America. Crushed talcum powder can become contaminated with cancer-causing asbestos because talc and asbestos are located next to each other in quarries where the minerals are mined. A Reuters investigation in December 2018 revealed that J&J knew for decades that its talc could be contaminated with asbestos, however, J&J withheld that information and made efforts to relax testing standards and skew research studies in its favor.
But while talc baby powder was still for sale, along with another J&J product with talc—Shower to Shower—the lawsuit sought an injunction of the product, mandating a warning on the product labels and a civil penalty of up to $10,000 for each violation, per MesoWatch.com
J&J’s position was that the case should be thrown out. That’s because Mississippi’s consumer protection law doesn’t apply to products regulated by the Food and Drug Administration (FDA). Both J&J baby powder and Shower to Shower were regulated by the FDA. As such, argued J&J, federal law preempts the state’s labeling complaint.
Ultimately, however, Mississippi’s high court ruled that the state’s consumer protection requirements are outside the scope of the Federal Food Drug and Cosmetic Act (FDCA). Furthermore, the MS Supreme Court ruled, since the FDA never imposed a labeling requirement on the products, there was nothing to preempt the state’s claims.
Mississippi’s case against J&J will go to trial in a county court. J&J will have to cover court costs associated with the appeal.
In November 2020, the Supreme Court of Missouri announced it would not review a lower court’s ruling that awarded 22 women who developed ovarian cancer, allegedly from J&J talc-based products, $2.1 billion. Last month, J&J petitioned the U.S. Supreme Court to review the Missouri judgement.
And in February, J&J, in an annual report, disclosed it was setting aside nearly $4 billion for litigation, much of it devoted to defending or settling talcum powder claims. J&J potential faces over 20,000 lawsuits despite the fact that in October 2020, the company settled 1,000 claims for $100 million.