Johnson & Johnson’s (J&J) talc-based Baby Powder has now been on trial for years. Across dozens of court cases, the argument remains the same: Plaintiff attorneys allege that J&J knew their talc products contained deadly asbestos fibers and company defense attorneys argue that nothing could be farther from the truth.
Five months after a compensatory trial between J&J and 4 mesothelioma victims — one of whom soon died after the verdict was delivered — a New Jersey jury heard arguments this week from both parties to assess the possibility for punitive damages against the pharmaceutical giant worth an estimated $366 Billion.
Completed in September, the compensatory trial awarded the 4 mesothelioma victims $37.3 Million in damages. Punitive damages — or damages designed to punish and set a precedent — will likely be determined in the coming days.
Punitive Trial Brings Evidence of J&J Tampering to Light
Featuring an entirely new jury, the trial for punitive damages, held in the Superior Court of the State of New Jersey, County of Middlesex, saw victim attorneys and J&J’s defense council argue over the existence and extent of J&J’s wrongdoing. Namely, their arguments centered on this question: Did the company know that their talc-based baby powder contained asbestos?
The answer, it seems, is yes. According to a report by Law360’s Bill Wichert, who has been covering the case, plaintiff attorneys argued that “Johnson & Johnson rigged its testing procedures so it could falsely claim its baby powder didn’t contain asbestos.”
The report also details how the 4 mesothelioma victims were duped into thinking Johnson’s Baby Powder® was safe when in reality it was not.
Allegedly, during its talc testing, J&J hiked up the asbestos-detection limit so high that they could easily claim that asbestos was not present in their talc. After all, it’s much easier to say there is no asbestos present in talc when detection tests are not looking for trace amounts of the mineral. According to Law360, the plaintiff’s attorney argued:
“They fixed the tests so they can pass them. If you know the answers to the test, you can pass it. That’s all this was. It doesn’t take anything more than your own common sense to see that.”
J&J, of course, denies all such allegations, claiming that they in fact brought in the best experts and adhered to industry-established best practices for asbestos testing in their talc-based baby powder.
As Trial Wraps, FDA Eyes New Regulatory Standards for Asbestos Tests
The conversation over asbestos-tainted talc has been heating up over the last few months, gaining real public momentum behind more stringent asbestos testing in cosmetic products. After all, the toxic mineral has been discovered in more than Johnson’s Baby Powder. It’s been identified in consumer products such as children’s makeup kits, blush, and eye shadow, to name only a few.
After years of scrutiny and a mountain of lawsuits alleging asbestos-tainted baby powder led to the development of cancer in thousands of people, the U.S. Food and Drug Administration (FDA) held a public hearing on Feb. 4 to discuss how talc should be tested for asbestos.
According to a report by Reuters, this is the first such hearing on the subject since 1971 — pointing out the dire need for updated regulatory standards concerning one of the most dangerous carcinogens known to man: Asbestos.
Each year, asbestos kills between 12,000 – 15,000 Americans. According to numerous federal and global health organizations, there is no safe level of asbestos exposure whatsoever. Once a person is exposed to asbestos, they carry a lifelong risk of developing mesothelioma, an incurable cancer that, on its own, is responsible for the death of 3,000 Americans every year.
Why Talc Desperately Needs New Regulations
As it stands, the laws governing how talc is tested for asbestos have not been updated in 50 years. At that time —1971 — the dangers of asbestos were only beginning to become public knowledge. For decades prior, the manufacturers of asbestos-containing products deliberately withheld knowledge of asbestos’ lethal health risks from their own workers, the U.S. government, and the general public.
They stood by and watched as thousands upon thousands of people died of lung-related injuries due to asbestos exposure.
Talc, the primary ingredient in a lot of cosmetic products, including Johnson’s Baby Powder, is intimately linked to asbestos. Structurally, talc and asbestos are similar. They are both naturally-occurring minerals and are commonly found together during the process of mining. In the processing of cosmetic talc, it’s especially difficult to separate the two from one another.
Because the federal regulations on talc have not been updated in 50 years, testing for the presence of asbestos in talc is not well-enforced. In fact, under the FDA’s Food Drug and Cosmetic Act, most talc-based cosmetics do not even require testing in order to be approved by the FDA.
As such, the FDA cannot enforce mandatory recalls on talc-based products that test positive for asbestos. In October 2019, when the FDA detected asbestos in Johnson’s Baby Powder, they encouraged J&J to issue a recall, though such a recall was not required under federal law.
Accordingly, J&J voluntarily recalled 33,000 bottles of its baby powder — though this had much more to do with public outcry than it did a company taking responsibility for its own reckless behavior. Regarding the FDA’s current regulations, the Environmental Working Group’s (EWG) Senior Vice President for Government Affairs, Scott Faber, perhaps said it best:
“Rather than require a warning or take other steps to reduce the risk that products made with talc could contain asbestos, the FDA instead adopted the honor system that permits companies to use tools that do not detect all asbestos fibers and which continue to put consumers at risk.”
It’s clear something needs to change. And leaving it to multi-billion-dollar companies to self-regulate is not the answer.
Johnson’s Baby-Powder Problem Continues to Swell
There seems to be no end in sight for the controversy surrounding J&J and its disclosure of reliable safety information to the public and federal authorities. While we wait for punitive damages to be handed down in the most recent trial, one thing remains perfectly clear: The company’s baby-powder problem is not going away.
Over 17,000 lawsuits alleging similar charges await their day in court.
Given that there is no safe level of asbestos exposure, it stands to reason that regardless of how much or how little of it baby powder contains, it is still a public-health threat. The problem is that it contains asbestos at all — period. And with exposure to asbestos comes the undeniable risk of developing mesothelioma.
Let us hope the 4 cancer victims seeking justice from J&J receive it.
