Mississippi’s long-running lawsuit against Johnson & Johnson over its talcum powder labeling is back on after the state’s high court refused to quash the suit.
The Mississippi Supreme Court unanimously ruled April 1 that the state’s lawsuit against Johnson & Johnson — which concerns an alleged link between ovarian cancer and the company’s talcum products — can proceed.
The state attorney general sued the manufacturer in 2014, contending that the company violated state law by failing to disclose on two product labels the risk of ovarian cancer. Until 2020, two of Johnson & Johnson’s talcum products — Johnson’s Baby Powder and Shower to Shower — contained large quantities of talc powder, which can pose a cancer risk if it’s contaminated with asbestos.
State Demands Risk Disclosure
More specifically, the lawsuit alleged that the company’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.” The attorney general sought an injunction mandating a warning on the product labels and a civil penalty of up to $10,000 for each violation.
For its part, Johnson & Johnson has repeatedly insisted that none of its products are contaminated with asbestos and that the products in question — which are no longer sold in the U.S. — do not pose a cancer risk.
The company argued that the case should be thrown out, filing for summary judgment on the grounds that the state’s consumer protection law doesn’t apply to products regulated by the Food and Drug Administration (FDA), such as their talcum powders. It added that even if the state law somehow applied, federal law preempts the state’s labeling complaint.
Factual Disputes
A chancery court in Hinds County — where the suit was filed — refused to throw out the case, noting the “factual disputes regarding Johnson & Johnson’s knowledge of a link between talc and ovarian cancer and Johnson & Johnson’s failure to disclose the risks,” the Mississippi Supreme Court noted in its ruling.
This led the company to appeal to the state high court, where it made similar arguments. But the high court didn’t buy Johnson & Johnson’s contentions, noting that while the Federal Food Drug and Cosmetic Act (FDCA) does expressly preempt some state-level cosmetics laws, Mississippi’s consumer protection requirements are outside the FDCA’s scope.
The high court also shot down the company’s argument that the state’s claims are barred by implied preemption, pointing out that since the FDA never bothered to impose a requirement on that specific class of cosmetics, there was nothing to preempt the state’s claims.
Supreme Court Rejection
“The [Federal Food Drug and Cosmetic] Act does not exclude the state’s talc labeling claim,” the justices concluded. “Additionally, because of the lack of any specific requirement by the Food and Drug Administration, the state’s claim is not barred by the principles of express or implied preemption. Therefore, the judgment of the Chancery Court of Hinds County is affirmed, and the case is remanded” back to the county court for trial.
Along with the loss, Johnson & Johnson also has to cover the costs of the appeal, court records show.
The company already faces a $2.1 billion judgment issued by a Missouri court, which it has appealed to the U.S. Supreme Court, and has amassed a $3.9 billion war chest for litigation, most of it going to either fight or settle talcum powder lawsuits, according to the firm’s Feb. 22 annual report
Johnson & Johnson Johnson & Johnson Consumer Companies, Inc. V. Lynn Fitch, Attorney General Of The State Of Mississippi Ex Rel. State Of Mississippi. (2018, December 18). Retrieved April 2, 2021, from Trial Judge: Hon. J. Dewayne Thomas Court From Which Appealed: Hinds County Chancery Court
