Manufacturers of Talc Products May Face Liability Under Prop 65
Products that contain talc have been the target of decades of litigation alleging that the chemical causes asbestos related injuries and ovarian cancers in users. Johnson & Johnson, one of the leading producers of talc products, currently faces over 11,000 lawsuits related to these claims in California and other states. The majority of these lawsuits allege that users of talc products developed ovarian cancer from exposure to talc.
Proposition 65 Lawsuits Targeting Talc
California’s right-to-know laws may represent a new avenue for litigation against talc product manufacturers. In California, talc containing asbestiform fibers is listed as a carcinogenic substance. Now a handful of California residents have filed lawsuits under Proposition 65 against talc manufacturers. In October 2018, a California judge rejected Johnson & Johnson’s attempt to dismiss the lawsuit which alleges that the company violated California’s False Advertising Law, Unfair Competition Law and Proposition 65 by selling contaminated talc products without including a warning label. The lawsuit claims that some exposures took place starting in 1987, when talc was added to the Proposition 65 list as a carcinogen.
Unlike personal injury claims, Proposition 65 lawsuits do not require a plaintiff to demonstrate physical harm. Rather, a Proposition 65 lawsuit simply must allege that a manufacturer of talc products exposed consumers to asbestos without providing “clear and reasonable warnings” related to the exposure. Moreover, Proposition 65 requires that the alleged unwarned exposure be “knowing and intentional.” Thus, claimants would need to show that a business was aware that it was creating an exposure and that exposure occurred from a deliberate act, such as the sale of a product.
The Link Between Cosmetic Talc and Asbestos
Until now, the link between talc and mesothelioma and ovarian cancer has played out in personal injury claims against manufacturers. Plaintiffs in these lawsuits have alleged that talc manufacturers knew that asbestos fibers were present in their cosmetic talc products and intentionally concealed the dangers associated with their products. Talc manufacturers have vigorously defended their products since, they claim, cosmetic talc products have been required to be verified as free from asbestiform minerals since the 1970s. Defendants have also raised questions about the methodology used to differentiate asbestos from crushed talc.
Talc Manufacturers Held Liable in Litigation
Juries have delivered inconsistent verdicts in cases against talc-based product manufacturers in cases nationwide. Johnson & Jonson was found not liable in three mesothelioma cases, but lost two mesothelioma cases in New Jersey and California. In July, a court awarded a $4.69 billion verdict in Missouri to 22 women for claims that asbestos-contaminated talc led to their diagnoses of ovarian cancer. Most recently, a California jury dismissed claims that a plaintiff contracted mesothelioma after asbestos exposure from the use of Johnson & Johnson’s talc products. It remains to be seen how juries will respond to lawsuits that allege liability for a cancer diagnosis as a result of a failure to warn under Proposition 65.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Prop 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].
