WASHINGTON - The Food and Drug Commission today plans to convene an “independent panel of scientific experts” to discuss the safety of talc, the possible first step by the agency toward issuing rules that could help plaintiff lawyers win lawsuits over a wide variety of consumer products.
One of the beneficiaries of potential FDA action would be the son of Health and Human Services chief Robert F. Kennedy, who oversees the FDA. Conor Kennedy is an associate with Wisner Baum, a plaintiff firm with a prominent role in mass-tort lawsuits including talc and a history of cooperation with RFK.
Conor Kennedy states on his firm bio he represents 11,000 clients with cancer clams over the stomach medicine Zantac - litigation that started years ago with a citizen petition to the FDA, which ultimately refuted its findings.
Records from 2023 showed Wisner Baum with at least 160 plaintiffs in the talc multidistrict litigation in New Jersey federal court. And a look at campaign records showed Wisner Baum employees contributed more than $23,000 to RFK’s failed bid for the Democratic presidential nomination.
The FDA announced the talc panel without warning on Friday. It said it will include unnamed independent experts and cites a recent article by George F. Tidmarsh, a Stanford pediatric cancer expert, who called on the FDA to reconsider its finding that talc is safe and effective. Talc is a processing ingredient in many different products from pills like Lipitor and Neurontin to chewing gum, candy and over-the-counter drugs.
“We call for the federal health agencies to prioritize a thorough and transparent reevaluation of talc’s risks, including its widespread presence in everyday products like food, cosmetics, and pharmaceuticals,” Tidmarsh wrote in the article. “The health of millions of people may depend on it.”
The article cites as evidence of potential harms from talc a $4 billion jury verdict in an ovarian cancer case in Missouri as well as studies relied upon by plaintiff lawyers. Some of those studies expand the theory behind talc claims from the initial focus on supposed asbestos contamination to the idea the mineral itself can cause cancer.
The company so-far most-targeted by talc lawyers is Johnson & Johnson, which is returning to courts around the country to argue the talc used in its Baby Powder didn't contain asbestos. Earlier this year, a federal bankruptcy judge rejected its plan to settle ovarian cancer claims for around $9 billion.
“We are confident that any truly transparent and independent scientific assessment of talc will come to the same conclusion reached by health authorities around the world for decades: talc is safe and does not cause cancer," said Erik Haas, worldwide vice president of litigation for J&J.
"It is concerning that the public and interested parties have not been provided with details on the panel in advance – who is participating, how to participate and what specific information is being discussed. We are trying to learn more.”
The International Agency for Research on Cancer last year classified talc as “probably carcinogenic to humans” based on animal studies. Plaintiff lawyers in the U.S. have relied upon IARC to press claims against Roundup and other products even though IARC’s findings are sometimes disputed by government agencies. Among other things, IARC considers cellphone use and working at night also to be carcinogenic.
In fact, RFK teamed with Wisner Baum in pushing the idea Roundup causes cancer. And he's announced he will give fees generated by litigation he and Wisner Baum were involved in over an HPV vaccine to one of his sons.
Any action flowing out of the FDA’s talc proceedings could help expand the reach of talc litigation, which now is concentrated on cosmetic talc and theories it is contaminated with asbestos and can cause ovarian cancer and mesothelioma, a deadly tumor of the abdominal lining. Should the panel decide talc itself is carcinogenic, plaintiff lawyers could assemble mass-tort cases against pharmaceutical and food manufacturers as well. One study cited in the Tidmarsh article found a link between ingested talc and stomach cancer.
The FDA under RFK could become a potent ally for mass-tort lawyers. Already plaintiff lawyers have asked the federal judge overseeing multidistrict litigation over ovarian cancer to admit into evidence a proposed FDA rule to add a new method for testing for asbestos.
J&J says the test, favored by plaintiff experts, would blur the distinction between asbestos fibers and non-asbestos particles. The plaintiffs said the proposed rule demonstrated a change in the “current policy of the FDA” but the judge ruled it was only a proposal and couldn’t enter the record.
Wisner Baum is a leader in Roundup litigation, which is based mostly on an IARC finding that the active ingredient glyphosate can cause non-Hodgkins lymphoma, a common cancer associated with aging. Roundup maker Bayer as well as the U.S. government say glyphosate is safe, citing large epidemiological studies showing no link between farmworkers with heavy exposures to glyphosate and non-Hodgkin’s lymphoma.
Talc litigation emerged as the traditional stock of asbestos plaintiffs, industrial workers who inhaled large quantities of the stuff, died off. Plaintiff experts retooled their theories to conclude consumers could get sick from inhaling even the trace amounts of asbestos they claimed was in talc, or that the fibers migrated up the fallopian tubes of women to cause ovarian cancer. Both theories relied upon the idea cosmetic talc contained asbestos, which J&J and other defendants deny.
Asbestos litigation has become a constant search for solvent defendants as all the industrial suppliers have gone bankrupt. Lawyers sue retailers, car-parts manufacturers and even modeling clay manufacturers. Expanding the list to everyday food and drug manufacturers could inject a huge new class of defendants to sue.