JACKSON, Miss. (Legal Newsline) - Federal law doesn’t prevent the state of Mississippi from suing Johnson & Johnson over its failure to put a cancer warning on talcum powder products, the state’s highest court ruled, carving out an independent role for the state in regulating certain cosmetic products.
Johnson & Johnson appealed to the Mississippi Supreme Court after a lower court judge refused to dismiss the lawsuit first filed by former AG Jim Hood filed in 2014 and currently pursued by Republican AG Lynn Fitch, accusing J&J of violating state consumer protection laws by not warning consumers about the risk of ovarian cancer from using Johnson’s Baby Powder and other talc products.
Experts hired by plaintiff lawyers, citing their own examination of samples from previously opened bottles, have testified that they found asbestos fibers in talc. J&J denies its products are contaminated, saying plaintiff experts are misconstruing harmless talc fibers with asbestos. The company nevertheless is removing mineral talc from the U.S. market to contain the litigation.
In a unanimous April 1 decision written by Justice Josiah Coleman, the Mississippi Supreme Court ruled that neither the Federal Trade Commission Act nor the Food, Drug and Cosmetic Act preempt the state’s own consumer protection law when it comes to cosmetic talc.
The FTC regulates false advertising and the FDA has exclusive authority to regulate safety warnings on cosmetics, but the FDA has never issued a formal rule regarding the cancer risk of talc, the state Supreme Court found.
Johnson & Johnson argued the FDA effectively declared talc safe when it rejected two consumer petitions to require cancer warnings on talc. Such petitions are sometimes submitted by experts who work for plaintiff lawyers, in an effort to create a more favorable regulatory climate for litigation.
The Mississippi high court acknowledged the talc petitions had failed, but said the FDA never followed through with the full notice-and-comment process to produce a rule that would prohibit J&J from changing the label on its talc products. That left the state’s Consumer Protection Act with the role of regulating talc labels, the court ruled. It cited a similar decision allowing the state to proceed with a lawsuit accusing pharmaceutical manufacturer Watson of defrauding the state’s Medicaid program by manipulating wholesale prices.