Baby Powder Litigation and Settlements – Exploring the Issues
Following a $72 million verdict against Johnson & Johnson in favor of the family of a woman who claimed her ovarian cancer was caused years of baby powder use, the talcum powder mass tort litigation may soon reach a settlement. While studies differ on the link between talc and cancer, the promotion of these products and the sufficiency of warnings of their potential risks have caused concern with some people, and anger with others.
While the purpose of this article is not to discuss the rights of affected women or their families in pursuing a talcum powder lawsuit, the law limits the time that injured parties have to pursue a claim for compensation. Contact Attorney Group for more information on your options in a free, confidential, and no obligation consultation.
Baby Powder: A Trusted Brand for Over a Century
Talcum powder is an astringent powder traditionally used for preventing diaper rash, as a deodorant, and for other cosmetic uses. It can also be used as a shampoo, cleaning agent and freshener. Talc has been described as “the softest mineral on earth, able to absorb odors and moisture.” China is the world’s biggest source of talc.
Baby powder is a brand name given to talc-based products by such companies as Johnson & Johnson. For more than a century, baby powder has been marketed to women for personal use, including for feminine hygiene. The Shower-to-Shower brand was promoted with the iconic tagline, “Just a sprinkle a day keeps odor away.”
However, studies going back to the 1970s have explored the baby powder ovarian cancer link. The concern for researchers is the possibility of talc particles migrating from women’s genital areas to their ovaries, where the particles cause inflammation leading to the development of cancer. According to Bloomberg News:
Forty-five years ago, British researchers analyzed 13 ovarian tumors and found talc particles “deeply embedded” in 10. The study, published in 1971, was the first to raise the possibility that talcum powder could pose a risk.
Warnings exist on baby powder labels advising against inhalation of the product, and note that the products are for external use only. However, some wonder whether these warnings go far enough, considering the use for which the products are promoted and potential baby powder ovarian cancer risks they pose.
Baby Powder Ovarian Cancer: Studies Address Risks
Potential baby powder ovarian cancer links have been extensively studied. According to a lawsuit, studies include the following:
- In 1971, the first study was conducted that suggested an association between talc and ovarian cancer.
- In 1982, the first epidemiological study was performed on talc powder use in the female genital area. This study found a 92% increased baby powder ovarian cancer risk with women who reported genital talc use. Shortly after this study was published, Johnson & Johnson [was advised that it] should place a warning on its talc-based products about their potential carcinogenic effects so that consumers can make an informed decision about their health.
- Since 1982, there have been approximately twenty-two (22) additional epidemiological studies providing additional data on the issue. Nearly all of these studies have reported an elevated risk for ovarian cancer associated with genital talc use in female patients.
- In 1993, the United States National Toxicology Program published a study on the toxicity of non-asbestiform talc and found clear evidence of carcinogenic activity. Talc was found to be a carcinogen, with or without the presence of asbestos-like fibers.
- On November 10, 1994, the Cancer Prevention Coalition mailed a letter to [Johnson & Johnson] informing [the] company that studies as far back as 1960’s “. . . shows conclusively that the frequent use of talcum powder in the genital area poses a serious health risk of ovarian cancer.”
- In 1996, the condom industry stopped dusting condoms with talc due to the health concerns and dangers.
- In February of 2006, the International Association for the Research of Cancer (IARC) part of the World Health Organization published a paper whereby they classified perineal use of talc-based body powder as a “Group 2B” human carcinogen.
- In approximately 2006, the Canadian government under The Hazardous Products Act and associated Controlled Products Regulations classified talc as a “D2A”, “very toxic”, “cancer-causing” substance under its Workplace Hazardous Materials Information System (WHMJS). Asbestos is also classified as “D2A”.
Johnson & Johnson contends that talc is safe for use, and asserts the following on its website:
- Johnson’s talc products do not contain asbestos. A frequent misperception is that Johnson’s Baby Powder contains talc made with asbestos, a substance classified as cancer-causing. Since the 1970s, talc used in consumer products has been required to be asbestos-free. Johnson’s Baby Powder products contain only U.S. Pharmacopeia (USP) grade talc, which meets the highest quality, purity and compliance standards.
- The safety of talc is based on a long history of safe use and decades of research by independent researchers and scientific review boards. Talc is accepted as safe for use in cosmetic and personal care products by the European Union, Canada and many other countries around the world, among them Argentina, Brazil, China, India, Israel, South Africa, Turkey and Indonesia.The U.S. Center for Disease Control (CDC), which identifies potential risk factors for many diseases, has not identified talc as a risk factor for ovarian cancer.
- The Nurses’ Health Study (2010) and the Women’s Health Initiative Observational Cohort (2014), the only two large-scale prospective studies looking at the issue, found no causal relationship between talc and ovarian cancer.
A Bloomberg News article titled, “Johnson & Johnson Has a Baby Powder Problem,” summarizes the studies and the potential impact of baby powder ovarian cancer risks. A crucial aspect is that the mixed results might come from the absence of a proper standard to measure women’s exposure to talcum powder. Some studies didn’t ask how many years that patient used the powder, while others failed to ask how it was used. Frequency and duration of the “treatment” are often overlooked. On top of that, even substances with a statistically smaller association with cancer such as hormone therapy are considered a serious threat to human health. No matter what, the company is still not relieved of the responsibility to warn consumers of the potential risks.
The article also notes that baby powder made from cornstarch is available and sells for about the same price as talc-based baby powder. The American Cancer Society has reportedly been encouraging the use of cornstarch products for feminine hygiene since 1999, and other companies, “including Gold Bond, California Baby, and Burt’s Bees, sell baby powder made of cornstarch only.”
Lawsuits Allege That Risks Were Minimized and Hidden
Baby powder ovarian cancer lawsuits filed against Johnson & Johnson and other companies allege that studies establish that talcum powder creates an unreasonably high risk of ovarian cancer, and that manufacturing companies behaved “recklessly and indifferently”.
- They knew the risk of talcum powder causing ovarian cancer;
- Minimized the risk through marketing and promotional efforts, as well as product labeling; and
- Otherwise concealed the risks from consumers
The jury in a St. Louis case brought on behalf of a woman, whose fatal ovarian cancer was claimed to have been caused by years of talcum powder use, apparently agreed and awarded a verdict of $72 million to the woman’s family in March 2016.
$62 million of the verdict was punitive damages, meant to punish the defendants and deter similar conduct in the future. According to Bloomberg News:
The jury foreman … called the company’s internal documents “decisive” for jurors, who reached the verdict after four hours of deliberations.
“It was really clear they were hiding something,” said [the foreman]. “All they had to do was put a warning label on.”
For its part, Johnson & Johnson maintains the safety of its products and stated that, despite the evidence presented at trial of baby powder ovarian cancer risks, as well as the substantial verdict against it, “We sympathize with the plaintiff’s family but firmly believe the safety of cosmetic talc is supported by decades of scientific evidence.”
Other news reports state that a pathologist found talc in the deceased woman’s ovaries, which the family contended caused inflammation that led to her cancer.
Company Accused of Targeting Minorities
Introduced into evidence in the St. Louis trial, were Johnson & Johnson internal memos appearing to recommend increased marketing of baby powder to minorities despite “negative publicity from the health community on talc (inhalation, dust, negative doctor endorsement, cancer linkage).”
While some commentary on these documents defended the company for “recognizing women of color as important consumers,” the approach apparently did not appeal to jurors in the case. The deceased woman’s son reportedly did not know about the marketing documents until trial and was “infuriated” when he heard about it.
Baby Powder One of Multiple Mass Torts Against Johnson & Johnson
Bloomberg notes that Johnson & Johnson has already been involved in many mass torts and product liability litigations. Since 2013, the company spent more than $5 billion to resolve legal claims over its medical devices and drugs, including a $2.2 billion settlement after being accused of illegally marketing Risperdal to children and the elderly. Other large fraud penalties include a $2.8 billion payment following a penal probe about its defective artificial hips and $120 million for hazardous transvaginal mesh devices.
In March 2016, a jury returned a $500 million verdict against the company and one of its subsidiaries in a lawsuit claiming that the DePuy metal-on-metal hip replacement was defective and caused injury. $360 million of that verdict was punitive damage against company intended, as in the case of the St. Louis talcum powder cancer verdict, to punish the company for wrongful conduct and deter similar conduct in the future.
The wide-ranging scope of litigation against J&J in recent years has prompted one commentator to ask whether the company has changed from one “that lived its famous credo of putting patients first to a company that puts ‘hit the sales numbers’ first and cites the credo, with feeling, when it is in a public relations mess related to allegedly defective products.”
Conclusion: “All They Had To Do Was Put a Warning Label On”
Although plaintiffs cite numerous studies showing a link between talc and ovarian cancer, and while at least one jury has agreed that the product causes cancer, scientific evidence does not appear to be determinative either way. Nevertheless, studies do seem to suggest at least a potential risk of the product causing ovarian cancer, and when a product poses a danger there is often a duty on the product seller to warn of those risks.
Warning of potential risks allows a consumer to make a better-informed decision when choosing to use a product. In the case of baby powder, if there had been a warning on talc-based varieties, a potential buyer may have chosen a cornstarch-based product or decided to address her personal care in another manner entirely. This may have been damaging to a century-old brand and hurt sales, but the safety of the consumer would have been better addressed.
In the St. Louis case, the jury appears to have found that Johnson & Johnson did not adequately warn of the potential risks of its product. Moreover, it appears that the company was aware of the potential risks, as reported in certain studies, but chose to look to other studies instead of warning of the potential risks.
This fact seems to have been the determinative one for the St. Louis jury, as in the words of the foreman, “All they had to do was put a warning label on.” Evidence that potential risks were minimized to support promotion of the product to minorities seems to have prompted, at least in part, the punitive aspect of the jury’s verdict.
The outcome of one case is not necessarily determinative of future cases. In October 2013, a South Dakota jury declined to award damages to a woman who developed ovarian cancer despite a finding that Johnson & Johnson failed to warn about the risks associated with its product. Other scheduled trials will undoubtedly have other outcomes.
Nevertheless, the failure to warn issue does seem to resonate with those evaluating these cases in depth. As one plaintiff was quoted as saying:
“This is an ugly disease. I sure would have appreciated being given the chance to say this is worth the risk or it isn’t.”
Has There Been a Talcum Powder Settlement?
As of October 2016, there have not been any reported settlements of claims asserting that talcum powder causes cancer. However, three cases have proceeded to trial with the following results:
- May 2017 – According to Reuters, a jury in Missouri awarded over $110 million to a Virginia woman who claimed that she developed ovarian cancer after decades of using Johnson & Johnson’s talc-based products for feminine hygiene.
- October 2016 – According to Law360.com, a verdict of $70 million was awarded by a Missouri jury to a woman who claimed to have developed ovarian cancer after using baby powder manufactured by Johnson & Johnson.
- May 2016 – According to Reuters, a Missouri jury awarded $55 million to a woman who claimed that regular use of Johnson & Johnson’s talc-based products for feminine hygiene led to her development of ovarian cancer.
- February 2016 – According to USA Today, a $72 million verdict was handed down to the family of a woman who died from ovarian cancer. A jury in St. Louis, Missouri, awarded the woman’s family a verdict of $10 million in actual damages and $62 million in punitive damages.
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