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By Peter Hayes
Johnson & Johnson has been notified that it will soon face a new front in the litigation over its personal care talc products.
J&J will confront, as soon as the end of October, claims that it continues to violate California law by failing to warn state consumers that the company’s Baby Powder and Shower to Shower products contain asbestos.
The company is already fighting thousands of ovarian cancer claims tied to its talc products and a number of asbestos-related personal injury suits. Several multi-million-dollar awards have been handed down, including in California, over the past two years in the cancer suits.
A group of California residents, represented by the Lanier Law Firm in Los Angeles, filed Aug. 24 its 60-day-required notice of intent to sue the product maker under California’s Proposition 65. That means the suit could be filed as early as Oct. 25.
The state law mandates consumer warnings by manufacturers whose products contain listed chemicals known to cause cancer or reproductive toxicity.
Unlike the personal injury suits the company is facing over its talc products, Prop. 65 claims do not require a showing of physical harm.
The company has “exposed and continues to expose consumers within the state of California to asbestos without providing clear and reasonable warning of this exposure,” the notice says.
The residents allege violations of exposure to asbestos going back to 1987, the year the substance was added to the Prop. 65 list of known carcinogens.
Johnson & Johnson denies the allegations.
“The U.S. Food and Drug Administration requires specific testing to ensure that cosmetic talcum powder is free of asbestos,” J&J spokeswoman Carol Goodrich said in a statement.
“We are confident that our talc products are, and always have been, free of asbestos, based on decades of monitoring, testing and regulation,” she said.
“Historical testing of samples by the FDA, numerous independent laboratories, and numerous independent scientists have all confirmed the absence of asbestos in our talc products,” according to Goodrich.
At penalties of up to $2,500 per day, per violation, J&J could be subject to hefty fines if the residents show the presence of asbestos in the company’s talc products.
“This case could be big numbers because it’s going back several years, so it could be lucrative in terms of damages,” Deborah A. Sivas, a professor at Stanford Law School in Palo Alto, Calif., told Bloomberg BNA.
“But the plaintiffs have a pretty high burden,” said Sivas, who directs the Stanford Environmental Law Clinic and has experience in Prop. 65 litigation.
“Manufacturers can argue that their product doesn’t pose a risk, even if the constituent is in the product, because of the way that it’s used,” she said. “Defendants can also argue that lab results are wrong or that there was no exposure.”
Manufacturers can also dispute whether the constituent is at a level that will cause harm, Sivas said.
Mark Lanier, the founder of The Lainier Law Firm, didn’t return Bloomberg BNA’s requests for additional details about the suit.
The Aug. 24 intent-to-sue notice asserts the violation of reporting requirements for both asbestos and, beginning in 1990, asbestiform fibers, in Johnson’s Baby Powder and Shower to Shower products.
“The principal routes of exposure … are through inhalation and perineal (genital) exposure,” the notice says.
The notice was filed three days after a Los Angeles jury awarded a woman $417 million in an ovarian cancer suit. That was the latest of several jury awards against the company.
The company is also litigating a round of suits alleging that asbestos in some of its older talc products, dating back to the 1970s, caused mesothelioma. The first jury trial on those allegations began in September, also in Los Angeles.
Defense counsel say the Prop. 65 claims are without merit.
“Cosmetic talc must be certified to be free as asbestiform minerals. This has been the case since the 1970s,” attorney Michael Jordan with Nexsen Pruet LLC in Greenville, S.C., told Bloomberg BNA.
Jordan is not involved in the Prop. 65 case, but he has extensive experience defending asbestos suits.
“Numerous courts have excluded experts’ supposed findings of asbestos in talcum powder,” he said.
“There are also technical questions about the proper methodology for identifying component minerals and one’s ability to visually distinguish asbestos from milled or crushed talc,” Jordan said.
Proposition 65 requires businesses to provide a warning before “knowingly and intentionally” exposing a person to a listed chemical.
To be liable under Prop. 65, a business “must be aware that it is causing an exposure, and the exposure must result from a deliberate act, like the sale of a product,” according to the website of California Attorney Gen. Xavier Becerra.
But there is no requirement that a business is aware that the exposure violates the law, or intends to violate the law or cause harm.
The law also provides an opportunity for the attorney general to take over the case.
When deciding to step in, the attorney general looks at the seriousness of the violation, whether it presents a risk to public health, how widespread the violation is, and whether the case presents new issues of law or science that should be resolved on a statewide basis.
But the attorney general can also try to block the case, Stanford’s Sivas said.
“Historically, if they don’t like the case, they may try to convince the plaintiffs’ lawyers not to bring it, because they want the law to be taken seriously,” Sivas said.
A spokesman for the California Department of Justice told Bloomberg BNA it is reviewing the notice.
To contact the reporter on this story: Peter Hayes in Washington at PHayes@bna.com
To contact the editor responsible for this story: Steven Patrick at firstname.lastname@example.org
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