The award of hefty damages over a death linked to talcum powder is putting pressure on companies to disclose the risks of products
The decision by a US jury that personal care giant Johnson & Johnson (J&J) must pay $72m to the family of a woman who died of ovarian cancer after using its talcum powders has raised questions in the US about whether companies should be forced to disclose their products’ ingredients.
Jacqueline Salter Fox used J&J’s Baby Powder, as well as Valeant Pharmaceuticals’ Shower-to-Shower Powder, for more than 35 years, and a jury in St Louis, Missouri, in February awarded her family $10m in compensatory damages and $62m in punitive damages after deciding J&J was liable for fraud, negligence and conspiracy.
Talcum powder, made from hydrated magnesium silicate, the clay mineral known as talc, has been linked to cancer in some scientific studies: historically talc often contained cancer-causing asbestos, and later, research found links between the use of talc by women in genital areas and ovarian and cervical cancer, as talc particles could lodge in internal tissues.
According to documents produced during the recent J&J trial, the company was aware of research identifying talc’s possible dangers as early as the 1970s but failed to warn consumers. A lawsuit in 2013 also found J&J negligent in failing to warn consumers of talc’s risks, but did not award any monetary damages.
While there have been plenty of this type of "toxic tort" lawsuits in US courts, the level of damages J&J has been ordered to pay raises important questions for personal care, cosmetics, and cleaning product companies, which may be facing increased reputational and legal risk. Thus far these types of companies have generally escaped US legislation to force disclosure of their products’ ingredients, shielded by the idea that those ingredients are trade secrets.
“But companies need to be addressing the risks,” says Keith S Dubanevich, a partner with legal firm Stoll Berne in Portland, Oregon. “And they need to be frank if there is some risk for the public when using the products.”
J&J stands by the safety of talc. Soon after the February verdict the company posted a fact sheet on its website stating: “Many research studies have evaluated talc and perineal use and these studies have found talc to be safe.”
However, the American Cancer Society finds the personal use studies around talc to be mixed, with “some suggestions of a possible increase in ovarian cancer risk”, while the International Agency for Research on Cancer says using talc in the genital area is “possibly carcinogenic”.
The issue is complicated by the fact that while researchers are finding links between talc and cancer, the exact epidemiological mechanism for how talc may cause cancer is not yet understood.
James A Morris Jr, of the Los Angeles-based Morris Law Firm, blogged after the February decision that the J&J verdict marks a new era in which companies should consider themselves not only liable for what is in their products but also responsible for telling consumers, and even educating them about the inherent risks.
Some companies are working to do that, though somewhat haphazardly. Procter & Gamble, for example, has disclosed a list of the chemicals it rejects in making its fragrances (though not the ones it accepts) while SC Johnson, a fellow household goods producer unconnected to Johnson & Johnson, reveals 100% of its fragrance ingredients.
Dubanevich of Stoll Berne says the verdict opens the door for more talc lawsuits – the current tally of talc cases pending across the United States exceeds 1,200.
“Science leads the process, and it’s not okay for companies to ignore the science,” says Dubanevich. “Good companies do what is needed to mitigate the risks, not just for themselves but also for consumers. If they don’t, the legal world follows.”EthicsWatch risk negligence conspiracy fraud liability