A planned class-action lawsuit against Johnson & Johnson and Bausch Health over alleged contaminants in their talcum powders — including asbestos — is going to the 9th U.S. Circuit Court of Appeals.

An attorney representing the plaintiffs — Louisa Gutierrez and Debbie Luna — said Feb. 22 his clients are appealing a lower-court ruling that tossed their case against the manufacturers. The consumers allege that the manufacturers falsely advertised their products as being “safe and pure, when they actually contained hazardous substances such as ‘asbestos, asbestiform fibers, lead, silica, and arsenic,’” according to an earlier court filing.

This intended class-action was dismissed Jan. 22 in U.S. District Court for the Southern District of California, with the judge concluding that the plaintiffs’ allegations lacked needed specificity under Rule 9B of the Federal Rules of Procedure. Rule 9B sets a “particularity” bar that all cases alleging fraud must clear before proceeding.

The primary basis for the appeal filed Feb. 19 is over the interpretation of Rule 9B, according to Jim Treglio of Potter Handy, one of the firms representing the plaintiffs.

Purity and Safety Disputed

The case centers on ads and marketing claims for baby powder and shower products made by the two companies. Promotional claims such as “most pure” and “hypoallergenic and tested with dermatologists” supposedly misled the plaintiffs into buying these products, thinking they were “safe and pure,” when they allegedly contained dangerous contaminants such as asbestos. The pair stopped buying these products after reading an article in December 2018 revealing talcum powder’s links with asbestos, lead, silica, arsenic, and/or asbestiform fibers.

But most of these allegations never specified which advertisements and promotions led them to buy the products, thus failing to clear Rule 9B’s particularity hurdle, according to Southern District Judge Todd Robinson.

“Apart from a few exceptions, [the] plaintiffs do not allege the specific content of the advertisement they viewed. ... Instead, they only provide their own interpretation of the advertisements,” the judge wrote in his order dismissing the suit.

Wrong Product

Other allegations were likewise dismissed. One pointed to ads referencing Johnson & Johnson products as being the “#1 Choice for Hospitals,” but as the manufacturer noted, this ad was not referring to their talcum powder products.

Given that this was the fifth time the plaintiffs had amended their allegations to address issues with the suit, the judge instead threw the case out, stating that “it seems unlikely that [the] plaintiffs can rectify the same fundamental deficiencies that have plagued their complaints” in past filings.

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