WASHINGTON (Legal Newsline) - Trial lawyers are poised to cash in on product-liability class actions with Robert F. Kennedy Jr. in charge of the Food and Drug Administration.
From his position as Health and Human Services Secretary, RFK won’t just be promoting his anti-vaccine agenda. Virtually anything he says about hidden dangers lurking in commonly used products will be grist for lawsuits, in particular “economic damages” class actions claiming consumers would have paid less for an item had they known the risks they learned from RFK.
Plaintiff lawyers typically file soon after a public announcement and bolster their cases with scientific data from laboratories they hire to produce evidence for lawsuits. When the public announcement comes from a high-ranking official like RFK, lawyers feel especially confident in suing.
"All the plaintiffs’ bar thinks it needs is a federal register notice or other public statement from a regulator and some kind of laboratory testing and they then think have enough to support a complaint,” said Rachel Turow, a former FDA attorney now of counsel to Skadden Arps.
“I think we’re going to see that pattern repeated throughout his tenure."
A recent model of the announce-then-sue strategy is phenylephrine, a vasoconstrictor once commonly used in over-the-counter cold medicines. A few days after an FDA advisory panel declared oral phenylephrine ineffective in September 2023, the first class action hit federal court in Pensacola, Fla.
By December, there were more than 70 economic damages suits against everyone from Johnson & Johnson to Family Dollar stores. They didn’t claim anyone was injured by the drug, just that they paid too much.
"The lawsuits were filed immediately after a non-binding advisory committee vote,” Turow said. “This shows you the power of the statements of the regulator to drive litigation, especially in the economic damages realm."
Lawyers struck out with phenylephrine after a judge dismissed all the claims in November 2024, but that’s unusual. Typically, when faced with scores of lawsuits and potentially ruinous damages, companies settle and plaintiff lawyers collect a quarter or more of the money as fees.
Kennedy, himself an experienced plaintiff lawyer, may deliver better results for his compatriots. Back when he was running for the Democratic presidential nomination, RFK announced what he called a 10-point plan to eliminate what he called “toxic chemicals used in everyday items” that cause cancer and birth defects.
His focus was plastic packaging but RFK has also long said the mercury preservative in vaccines causes autism – a debunked scientific theory trial lawyers promoted to keep their cases out of a special court for vaccine injuries that provided lower fees.
Last month, RFK’s FDA announced Operation Stork Speed to test infant formula for contaminants including heavy metals. Any information coming from that study will likely be tinder for lawsuits over baby products, which already fill federal court dockets. (Even Water Wipes baby wipes allegedly present a risk to infants because of microplastics.)
Other cases filed this year include claims Girl Scout cookies contain heavy metals (that suit includes jury-inflaming, if irrelevant, information about the salaries of top Girl Scouts officials), Boba Guys teas (allegedly contain BPA, a chemical in plastic), RXBAR energy bars (dies and additives), and Nearly Naked popcorn snacks (“artificial ingredients” including citric acid).
Most of the suits cite evidence from labs like Lead Safe Mama, Consumer Reports, GMOScience or Plastic List Report, whose sponsors include Stripe co-founders John and Patrick Collison. GMOScience’s advisory board includes Zen Honeycutt, executive director of Moms Across America, a vocal supporter of RFK for HHS Secretary because of his stance against plastics and other supposed toxins.
Kennedy, of course, is a trial lawyer who has made millions from personal-injury suits. His nonprofit, Children’s Health Defense, spends most of its money on salaries – RFK made $500,000 as chairman in 2022 – and millions in fees to law firms including JW Howard, where until this year Kennedy was of counsel. Children’s Health Defense has roots in promoting the mercury/autism theory and still supports the anti-vaccine movement as well as a more general goal of “eliminating environmental exposures” and “holding responsible parties accountable,” which is shorthand for litigation.