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Commentary By James R. Copland

Johnson & Johnson Takes a Powder

Governance Civil Justice

If your baby has diaper rash, there may be a long trip in your future.

If you want Johnson & Johnson baby powder, stock up now or prepare to travel overseas. On Tuesday the company announced it will discontinue sales in the U.S. and Canada of talcum-based baby powder, which it has sold since 1894. America’s litigation-friendly legal system has subjected the company to a flood of baby-powder lawsuits, making it too expensive to sell in the U.S.

The first wave of lawsuits alleged that the product caused ovarian cancer—a claim the best medical science doesn’t support. A January study in the Journal of the American Medical Association followed more than 250,000 American women for 11 years and found no significant ovarian-cancer risk associated with talcum-powder use. The Centers for Disease Control and Prevention don’t list talc as an ovarian-cancer risk. The Food and Drug Administration has consistently found insufficient evidence to mandate an ovarian-cancer warning label on talcum powder.

In other developed countries, regulators would apply the best science and essentially end the matter. But not in the U.S., where claims that a product causes an injury are typically matters of state law. An FDA determination that a product is safe doesn’t usually preclude litigation alleging otherwise.

Juries often rejected these lawsuits: Johnson & Johnson won at least eight jury verdicts in 2019. Some juries have gone for cancer patients too—at least five in 2019—sometimes levying giant damage awards. Between 2016 and 2018, five different juries in St. Louis returned verdicts totaling almost $5 billion. Two-thirds of the early series of talcum cases were filed in St. Louis, half a country away from Johnson & Johnson’s headquarters in New Jersey, as lawyers exploited historically lax venue rules. Missouri appellate courts eventually reversed verdicts in four of the five cases, in which plaintiffs had hailed from Alabama, California, South Dakota and Virginia.

More-recent talcum-powder lawsuits have invoked a new theory of harm. Asbestos, once ubiquitous in home insulation, has been definitively linked to the lung cancer mesothelioma—leading asbestos litigation to become the largest and longest-running mass tort in the U.S. It also appears in trace amounts in naturally occurring talc. Despite longstanding efforts by Johnson & Johnson and other manufacturers to eliminate asbestos entirely from consumer products, a small number of tests over the past five decades have detected some asbestos in talcum powder samples.

These readings may have been false positives, as they were not replicated by additional testing. No matter: Asbestos lawyers have Johnson & Johnson as their latest deep-pocketed corporate defendant. And a necessary one too, as other lawsuits bankrupted all the actual asbestos manufacturers long ago.

This piece originally appeared at The Wall Street Journal (paywall)


James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute. He is the author of “The Unelected: How an Unaccountable Elite is Governing America,” forthcoming in September. Follow him on Twitter here.

This piece originally appeared in The Wall Street Journal