J&J Turned Away by U.S. Supreme Court Over Talc Cancer Suits
J&J Turned Away by U.S. Supreme Court Over Talc Cancer Suits
(Bloomberg) -- The U.S. Supreme Court turned away a Johnson & Johnson appeal that sought to create a broad shield from lawsuits accusing the company of failing to warn consumers that its iconic baby powder could cause cancer.
The justices, without comment, on Monday left intact a Mississippi Supreme Court ruling that let the state use its consumer protection laws to sue the company. J&J argued the suit was precluded by the U.S. Food and Drug Administration’s 2014 decision not to require a cancer warning on talcum-powder products after anti-cancer advocates requested them.
J&J is facing more than 38,000 lawsuits stemming from claims its talc products cause ovarian and other kinds of cancer in women. The company is separately trying to resolve the suits by putting a new unit that holds the liability into bankruptcy. The goal is to negotiate with victims to create a trust with at least $2 billion to pay all current and future baby-powder claims. The company pulled its talc-based powders off the market in the U.S. and Canada last year.
The decision leaves “unresolved significant legal questions” about federal regulatory authority over cosmetic labeling, Melissa Munoz, a J&J spokeswoman, said Monday in an emailed statement. “The filing by the state of Mississippi could set a dangerous precedent, allowing states to impose unnecessary, competing and even retroactive labeling requirements.”
Susannah Williams, a spokeswoman for Mississippi Attorney General Lynn Fitch, didn’t return a call for comment. Fitch is pressing the consumer-fraud case against J&J over the lack of baby powder warnings on behalf of the state’s residents.
At the high court, J&J argued unsuccessfully that the Mississippi suit “runs headlong” into a provision in the U.S. Food, Drug, and Cosmetic Act. That law bars states from imposing labeling requirements that are “different from or in addition to” any requirements for a particular item under the federal statute.
“The statute leaves no room for a state to impose a requirement for labeling the FDA has flatly rejected,” J&J argued in its appeal, which drew backing from business groups including the U.S. Chamber of Commerce as well as eight former FDA officials.
The Mississippi Supreme Court said the FDA’s decision not to require a warning, as two citizen petitions had -sought, didn’t trigger that so-called preemption provision.
“The pre-emption statute requires the existence in federal law of a positive expression of regulation applicable to a specific product,” the Mississippi court ruled. Fitch urged the Supreme Court not to hear the appeal.
Justices Samuel Alito and Brett Kavanaugh didn’t take part in the decision to reject the appeal. As is customary, neither gave an explanation, although Alito’s most recent financial disclosure report indicated either he or his wife owned J&J stock. Kavanaugh’s father, Edward Kavanaugh, was a cosmetic-industry lobbyist whose organization fought efforts to require warnings on talc products.
J&J isn’t having much recent luck getting its talc appeals heard by the nation’s highest court. In June, the justices declined to take an appeal by the world’s largest maker of health-care products over a $2.1 billion award to 20 women who blamed J&J’s baby powder for causing their cancers. With interest, the company had to pay a total of $2.5 billion.
The case is Johnson & Johnson v. Fitch, 21-348.
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