Asbestos Contamination of Baby Powder Concealed by Johnson & Johnson: Reuters Report
Cancer victims who attribute their disease to the lifelong use of talcum powder have obtained substantial jury verdicts against Johnson & Johnson, the leading manufacturer of powders containing talc. Some of those decisions have been reversed because they were filed in the wrong state, but judges have generally agreed that the evidence supports the victims’ claims that talcum or baby powder caused their cancers.
Johnson & Johnson has loudly and repeatedly claimed that its talc-based products do not cause cancer. A bombshell investigation by Reuters, however, found that J&J knew that its products were contaminated with a carcinogen and deliberately concealed that information from federal regulators and the public.
The evidence uncovered by the investigation undercuts the defense that J&J has made to lawsuits filed by cancer victims. The question now is how that evidence will affect pending and future lawsuits against the company.
Talcum Powder and Cancer
Talc is a mineral that is often found near deposits of asbestos. When talc is mined, it can be contaminated with asbestos. Asbestos is a known carcinogen.
Nearly all cases of mesothelioma are caused by asbestos particles. An investment banker in New Jersey recently won a judgment against Johnson & Johnson after proving that his mesothelioma was caused by his daily use of Shower to Shower (a product that J&J discontinued) and other J&J talc-based products. A California woman recently settled her mesothelioma lawsuit for an undisclosed amount shortly before closing arguments were scheduled to begin in her trial.
Several lawsuits have attempted to link talc-based products to ovarian cancer. The most recent verdict awarded $4.69 billion to 22 women who developed ovarian cancer after using J&J products. The verdict was based on evidence that the talc used by J&J had been contaminated by asbestos. While the verdict will likely be reduced, it is less clear whether the reduced verdict will withstand other post-trial legal challenges.
Earlier lawsuits, however, were less successful. Johnson & Johnson pursued a strategy of resisting discovery requests for the production of reports that would have helped cancer victims prove their cases. Reuters reports that the lawyers for J&J falsely claimed that the requested documents would not turn up any relevant evidence.
Juries that have had a chance to see those records have concluded that they prove J&J protected its profits and reputation by concealing evidence that it was marketing baby powder contaminated with cancer-causing asbestos. While J&J’s lawyers may not regard unfavorable evidence as relevant, it is unfortunate that judges simply took them at their word rather than requiring J&J to produce the documents.
In recent years, courts have been more willing to require J&J to produce its documents in response to plaintiffs’ discovery requests. Courts have generally required those records to be kept confidential, even though sealing the records hides the truth about corporate malfeasance from the American public.
Reuters was able to examine many of the confidential documents. Its investigation revealed “that from at least 1971 to the early 2000s, the company’s raw talc and finished powders sometimes tested positive for small amounts of asbestos, and that company executives, mine managers, scientists, doctors and lawyers fretted over the problem and how to address it while failing to disclose it to regulators or the public.”
Johnson & Johnson began a public relations campaign to assure the public that its products were safe. Its strategy included funding “scientific” studies designed to “minimize the risk of possible self-generation of scientific data which may be politically or scientifically embarrassing.” In other words, J&J didn’t want to fund studies that would prove its products contain asbestos.
According to Reuters, J&J funded a study, “told the researchers the results it wanted, and hired a ghostwriter to redraft the article that presented the findings in a journal.” The company also tried to influence the results of government studies by developing relationships with regulators. Reuters found that J&J has a long history of funding researchers and dictating the outcome of the research before it begins.
Stunningly, J&J told the Food and Drug Administration (FDA) in 1976 that no asbestos was “detected in any sample” of talc produced between December 1972 and October 1973. That misleading statement concealed the fact that three tests between 1972 and 1975 discovered asbestos in J&J’s talc, including one test result that characterized the asbestos concentration was “rather high.”
The testing protocols that J&J implemented allowed asbestos to go undetected, and the company tested only a small fraction of its talc. The assurances J&J made to regulators and the public were designed to benefit J&J, not to advance the truth.
In 1973, J&J’s research director wrote an internal memorandum concluding that it would be impossible to remove all fibers from the company’s talc that “might be classified as asbestos.” He recommended that the company move to powders made from cornstarch. Instead, J&J conveniently disagreed with its research director’s conclusion that the fibers could be classified as asbestos.
The company’s test lab discovered asbestos fibers in talc samples during the 1980s. A 1991 report by a Rutgers University geologist confirmed the existence of asbestos in the company’s Baby Powder, identified as tremolite “asbestos” needles.
Johnson & Johnson sold its Vermont mining operation in the 1990s and the new owner expressed concern about talc contamination. The new owner noted, however, that mining records were destroyed before the sale was completed.
J&J’s Fight Against Regulation
The FDA regulates asbestos in drugs but has chosen not to regulate asbestos in cosmetics. When the FDA considered regulation in the 1970, J&J resisted rules that would have required it to assure the safety of its talcum and baby powder.
The best way to detect asbestos in talc is to examine samples under an electron microscope. Johnson & Johnson instead pressed the FDA to approve X-ray testing that would allow automatic approval of an asbestos level ten times in excess of the FDA’s recommended limit. In an internal memorandum, a J&J lab supervisor noted that microscopic testing “may be too sensitive.” In other words, J&J didn’t want to use a test that would actually detect the presence of asbestos.
Johnson & Johnson then began to advocate self-policing as an alternative to regulation. In 1976, the trade association for the cosmetic industry adopted voluntary guidelines that recommend the removal of asbestos from cosmetic products, including talcum powder and most baby powders, that contain talc. The committee that drafted those guidelines was chaired by a J&J executive.
In 1984, the FDA cosmetics chief told the New York Times that the voluntary guidelines had eliminated asbestos from talcum powder. The FDA cosmetics chief was a former employee of J&J, an example of the revolving door that too often leads to lax regulation as members of industry are placed in charge of regulating the industries from which they came and to which they expect to return.
The FDA apparently relied on J&J’s representations when it decided not to regulate the asbestos content of cosmetics that include talc. The FDA has never regulated the amount of asbestos that talc used in cosmetics may contain and has never required a specific testing method to detect the presence of asbestos in powders that contain talc.
In 1977, J&J applauded itself for a successful public relations campaign. An internal memo noted that the medical community had accepted the “favorable data from the various J&J sponsored studies.”
The current attempt at public relations consists of denying that the company has done anything wrong. The lawyers for J&J dispute key facts in the Reuters report. Those same arguments have been presented to juries that rejected J&J’s attempt to explain away test results it doesn’t like.
Some of those juries have assessed punitive damages against J&J for hiding evidence that might have persuaded consumers not to expose themselves and their babies to carcinogens. Its lawyer’s fanciful claim that “J&J did not withhold any relevant testing from FDA” was expressly rejected by a New Jersey judge who upheld a verdict against the company.
Johnson & Johnson currently buys its talc from a supplier in China. It maintains that the talc is asbestos-free. Since the FDA does not require independent testing of talc used in cosmetics, consumers cannot be confident that J&J’s assertion is truthful. The company’s lack of candor about the products it made from the talc it mined in Vermont might make consumers wary of J&J’s assertion that the Chinese talc it imports is not contaminated by asbestos.
In any event, it can take decades for asbestos exposure to trigger the onset of cancer. Consumers who used J&J products before 1976 may therefore be at risk of mesothelioma or ovarian cancer regardless of the safety of the products that J&J sells today.
Thousands of pending lawsuits against J&J allege that the company’s talcum powder and baby powder products caused mesothelioma or ovarian cancer. The evidence revealed by Reuters may encourage more cancer victims to pursue a legal remedy for J&J’s failure to warn them that they have been using a dangerous product.