J&J Must Face Claims in Talcum Powder Consumer Suit

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By Julie A. Steinberg

Sept. 21 — Johnson & Johnson must face monetary damages claims in a would-be class suit alleging it deceptively marketed Johnson’s Baby Powder despite a known risk of ovarian cancer ( Mihalich v. Johnson & Johnson , 2016 BL 309923, S.D. Ill., No. 14-00600, 9/20/16 ).

Barbara Mihalich adequately alleged J&J violated the Illinois Consumer Fraud and Deceptive Business Practices Act, the U.S. District Court for the Southern District of Illinois said Sept. 20.

The company failed to warn consumers that use of the powder in the genital area increased a woman’s risk of developing ovarian cancer, she alleged.

Despite the company’s knowledge of talc-related risks, as exhibited by studies dating back many decades, J&J sought to convey an image of a trusted family product, she said.

Had she known about the cancer risk, she would have bought a different product containing cornstarch instead of talc, Mihalich said.

The plaintiff sufficiently alleged that she suffered an economic injury and that J&J was unjustly enriched, the court said.

But the court dismissed claims for requesting an order that would prevent J&J from continuing to market the powder with the alleged misrepresentation and omission of material facts.

Mihalich lacks standing to bring injunctive relief claims, the court said. Mihalich, who now knows about the alleged risk, is unlikely to buy talcum power again and therefore can’t show she faces an immediate threat of future harm.

Goldenberg Heller & Antognoli PC, Blood, Hurst & Reardon LLP and others represent the plaintiffs.

O’Melveny & Myers LLP and Bryan Cave, LLP represent Johnson & Johnson.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bna.com

To contact the editor responsible for this story: Nicholas Datlowe at nDatlowe@bna.com

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