Mississippi Talc Labeling Lawsuit Able to Proceed With State’s Supreme Court Refusal to Toss Claim

A long running lawsuit brought by the state of Mississippi against pharmaceutical and cosmetics giant Johnson & Johnson may proceed, after the state supreme court refused to side with the company in its bid to toss the claim involving allegations that it violated state laws concerning labeling of its talc-based products. Specifically, the lawsuit brought by Mississippi’s attorney general claimed that Johnson & Johnson failed to disclose possible health risks associated with using the company’s Baby Powder and Shower to Shower talcum powder products which the company faces an avalanche of litigation in federal and state courts across the country.

According to the lawsuit, filed in Hinds County Chancery Court in 2014, Johnson & Johnson violated Mississippi’s Consumer Protection Act when the company failed to include labels on its talcum powder products displaying a warning of the possible links between using talc-based products and developing ovarian cancer. The state’s attorney general’s lawsuit sought an injunction to force Johnson & Johnson to include warnings on talcum powder product labels and enforce violations with fines up to $10,000.

After the state filed its preliminary lawsuit in county court, Johnson & Johnson asked the court to toss out the lawsuit. After the chancery court refused to do so in December 2018, the company appealed to a state appellate court to do the same, but was met with a similar denial. Johnson & Johnson subsequently went to the state’s highest court for yet another dismissal, arguing that labeling requirements on its cosmetics products are preempted by federal laws and the state therefore had no authority to require the company include the types of warning labels the matter pertained to.

In its decision, the Mississippi Supreme Court noted, “The [Federal Food Drug and Cosmetic] Act does not exclude the state’s talc labeling claim. Additionally, because of the lack of any specific requirement by the Food and Drug Administration, the state’s claim is not barred by the principles of express or implied preemption. Therefore, the judgment of the Chancery Court of Hinds County is affirmed, and the case is remanded.”

Johnson & Johnson faces an estimated 20,000 talcum powder cancer lawsuits, many of which claim the company’s Baby Powder and Shower to Shower products are contaminated with cancer causing asbestos fibers which lead to the plaintiffs’ mesothelioma cancer diagnosis. Thus far, jury verdicts in state courts have resulted in billion of dollars in combined judgments, including a substantial $4.69 billion verdict by a Missouri state court awarded to 22 plaintiffs who claimed they developed mesothelioma and other serious health conditions as a result of decades of using Johnson & Johnson’s Baby Powder.

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