A proposed class action lawsuit accusing Johnson & Johnson (J&J) of falsely  advertising its discontinued-in-North-America, iconic talc baby powder and other products with talcum has been dismissed by a U.S. District Judge. 

Two California women were named lead plaintiffs for the proposed class action lawsuit in 2019. According to Reuters, they allege that J&J misled consumers “Through a decades-long marketing campaign representing its talc products as safe and free from contaminants. The company created that impression through advertisements describing the products as ‘pure,’ ‘gentle’ and ‘approved by hospitals,’ the plaintiffs said. 

In reality, the plaintiffs said, talc baby powder and other J&J products with talcum were sometimes contaminated with asbestos “and other dangerous impurities.”

However, the Judge dismissed the case last Friday. The Judge’s decision is  a final determination on the merits of the case. In other words, the plaintiffs may not file another lawsuit based on the same grounds that J&J engaged in false advertising practices.  

The Judge explained his decision by stating that the plaintiffs “Failed to point to any specific misleading advertisements from J&J that caused them to buy the company’s talc products.”

This was the second time the plaintiffs had the opportunity to present their case with more detailed allegations. But seemingly, plaintiffs’ attorneys failed to do just that. 

Despite the failure of this particular class action lawsuit, J&J faces over 20,000 individual talc powder lawsuits. Plaintiffs who have filed talc powder claims against J&J allege that because they used the company’s talc baby powder for several years in their genital area, they developed ovarian cancer. Research studies support the conclusion by the World Health Organization’s International Agency for Research on Cancer’s conclusion that exposure to asbestos is associated with an increased risk of ovarian cancer. 

In October 2020, J&J announced it would settle over 1,000 talc lawsuits for $100 million. Part of this settlement includes approximately 75 mesothelioma cases. Mesothelioma is a cancer of the lining of the lungs (and/or other organs) that results from the inhalation of asbestos fiber particles. Many consumer products contain asbestos. 

In November of last year, in New York state, a judge ordered J&J to pay an individual plaintiff who suffers from mesothelioma $120 million. 

Following the Judge’s dismissal of the class action lawsuit over false advertising claims, Reuters reporting included a statement by a J&J spokesperson: “We are pleased with the court’s thorough decision to dismiss this case … Johnson’s Baby Powder is safe and research, clinical evidence and more than 40 years of studies by medical experts around the world continue to support the safety of cosmetic talc.”

However, in October 2019, J&J voluntarily recalled a batch of talc powder after testing revealed trace amounts of asbestos particles. Inhaling or being exposed to even trace amounts of asbestos, studies show, also raises the risk of developing mesothelioma; there is no such thing as safe levels of asbestos exposure.  

Plaintiffs’ attorneys responded to the decision: “”We are obviously disappointed with the court’s decision … Right now, we are going over the order carefully, and plaintiffs will be considering their options going forward.”

The plaintiffs claimed not that J&J talc baby powder or other talc-containing products sold by the company made them sick. Rather, their case claimed that they would not have purchased the products had it not been for the company’s misleading advertisements. 

Both plaintiffs, reports Reuters, sought money damages under California’s False Advertising and Unfair Competition laws. 

But the judge ruled that the plaintiff’s claims were too vague, and failed to link 

specific advertisements to purchasers’ decisions.

“Merely alleging that the advertisements stated that the talcum products were ‘pure,’ ‘safe,’ or that they would keep you ‘fresh’ and ‘odor free’ without identifying the particular advertisement that plaintiffs viewed” was not enough to state a viable claim under California law, the judge wrote.

The judge added, “Plaintiffs have not carried their burden of showing that the talcum products are unsafe” as part of their claim that advertisements were misleading.

A 2018 Reuters investigative report disclosed that J&J knew for decades about asbestos in its talc, pointing to internal company records, trial testimony and other evidence. The evidence provides proof that from at least 1971 to the early 2000s, J&J’s raw talc and finished powders sometimes tested positive for small amounts of asbestos.