Johnson & Johnson has waved the white flag. Recently they announced they would discontinue sales of talcum-based baby powder in the U.S. and Canada, which they have sold since 1894.
As shocking as this sounds, it should be no surprise to anyone who watches television lately. The airwaves have been filled with trial attorneys soliciting anyone who has used baby powder in their lifetime and suffered from ovarian cancer. These ads would have you believe that talcum powder has been proven as a cause of cancer. Except, it hasn’t.
I wrote about this travesty of the legal system in 2017 in a post called The Talcum Powder Cancer Scare. At that time a jury found for a plaintiff who had terminal ovarian cancer and awarded her $417 million for J & J’s failure to warn her about the risk of using their product. She had been using baby powder for over 40 years.
But the scientific evidence did not support the jury’s findings. The American Cancer Society statement was as follows:
“Many studies in women have looked at the possible link between talcum powder and cancer of the ovary. Findings have been mixed, with some studies reporting a slightly increased risk and some reporting no increase. Many case-control studies have found a small increase in risk. But these types of studies can be biased because they often rely on a person’s memory of talc use many years earlier. Two prospective cohort studies, which would not have the same type of potential bias, have not found an increased risk.”
Johnson & Johnson was awarded a new trial at that time by California Superior Court Judge Maren Nelson to appeal the verdict. Judge Nelson stated, “The documents and testimony, granting all evidence in favor of the plaintiff do not support liability . . . much less support a finding of clear and convincing evidence that a punitive damage was appropriate.”
At that time, it seemed this attempt by the tort lawyers to turn talcum powder into the next asbestos racket would be thwarted. But alas, such was not the case. The legal system enthusiasm for suiting J & J has grown, while the scientific evidence to support their claims remains lacking.
A January, 2020 study published in the Journal of the American Medical Association (JAMA) followed more than 250,000 American women for 11 years and found no significant ovarian-cancer risk associated with talcum-powder use.The Centers for Disease Control and Prevention (CDC) does not list talcum powder as an ovarian cancer risk. The Food and Drug Administration (FDA) has consistently found insufficient evidence to mandate an ovarian-cancer warning label on talcum powder.
James R. Copland, writing in The Wall Street Journal, says this disconnect between science and the tort system doesn’t exist in other developed countries. He says regulators would apply the best science and essentially end the matter. But not in the U.S., where claims that a product causes an injury are typically matters of state law. An FDA determination that a product is safe doesn’t usually preclude litigation alleging otherwise.
Juries have often found in favor of Johnson & Johnson. They won 8 jury verdicts in 2019. But five other juries found for the plaintiffs in the same year and awarded heavy damages. Between 2016 and 2018, five different juries in St. Louis returned verdicts totaling almost $5 billion. Two-thirds of the early series of talcum cases were filed in St. Louis, even though the headquarters of J & J is over a thousand miles away in New Jersey. It seems that St. Louis has earned a reputation for plaintiff-friendly and generous juries.
The Covid-19 pandemic has made for empty shelves where hand-sanitizer and sanitary wipes used to sit. Looks like talcum powder is about to be the next item scarce to find.
