We all know the adage, “What you don’t know can hurt you.” There is truth in that conventional wisdom. Harms caused by exposure to talc-based cosmetic and body powders prove the point. Unbeknownst to consumers, there are asbestos fibers inside many of the talc products they purchase. Exposure to asbestos can cause ovarian cancers and malignant mesothelioma.
Over the last eight years, there has been a groundswell of litigation against consumer talc product manufacturers and talc suppliers. People who have developed ovarian cancers or malignant mesothelioma have sued Johnson & Johnson, Chanel, Revlon, Estee Lauder, and other manufacturers, claiming those companies knew there was asbestos in their talc products, but concealed, and even lied, to the public and to FDA.
Talc litigation and related bad publicity forced Johnson & Johnson to stop selling talc-based Johnson’s Baby Powder, its long-time signature brand, in the United States. The company still sells a baby powder to American consumers, but the product is made from corn starch rather than talc.
The high cost of talc litigation, including some very large verdicts that Johnson & Johnson was forced to pay, spurred the company to spin off its consumer talc subsidiary and put that entity into bankruptcy. Johnson & Johnson is a wealthy company that did not itself file for bankruptcy but is trying to use the spin-off and bankruptcy filing of its subsidiary to obtain immunity in the tort system from all present and future claims for ovarian cancers and malignant mesothelioma.
Johnson & Johnson’s aggressive use of the bankruptcy system has sparked fierce opposition from injury victims and some legal observers, who contend that the company is perpetrating a sham intended to undercompensate deserving claimants.
The question of whether J&J can obtain permanent injunctive relief through these maneuvers is currently pending before the United States Third Circuit Court of Appeals. The loser of that appeal is expected to petition the United States Supreme Court for review.
You may naturally be asking yourself, “How the hell is there asbestos in body powders and other talc products?” The answer is geology. Talc is a mineral mined from the ground. Talc ore is then milled into fine powder and sold in products. Asbestos is also a mineral. Asbestos resides in many of the same geologic formations that talc ore does. Sometimes, when talc is pulled out of the ground, so, too, is asbestos. Asbestos fibers are microscopic and multitudinous. Even where millions of asbestos fibers are aggregated, those fibers are not visible to the naked eye.
Claimants allege that Johnson & Johnson has known these brute scientific facts for a long time. In the early 1970s, J&J tried to develop a mechanism to remove asbestos from its talc. However, that effort failed. There is simply no way to eliminate the presence of asbestos through processing of talc or to identify and pull out each of millions of microscopic asbestos fibers from the powder poured into product containers.
Faced with this grim reality, Johnson & Johnson had choices to make. The company could have stopped selling talc products or warned consumers about the presence of asbestos in Johnson’s Baby Powder or concealed from the public the existence of asbestos in the talc.
Lawsuits allege, and many juries have agreed, that J&J chose the last option. Plaintiffs contend that J&J did not act alone in this scheme, but rather, worked with several other manufacturers of talc-based cosmetic products to game testing methodologies and to skew articles published in scientific journals, all for the primary purpose of deceiving FDA into believing the asbestos was not there.
Irrespective of whether J&J is forced back into the tort system, claims for ovarian cancer and malignant mesothelioma filed against other manufacturers and talc suppliers will flourish for the foreseeable future. Beyond its litigation dimensions, I believe you should never again use a talc-based product. The health risks are too high and functional alternative formulations exist.
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