JPML Rejects Request to Consolidate Benzene Exposure Lawsuits Over Benzoyl Peroxide Acne Products

About 30 product liability lawsuits filed over the presence of benzene in certain acne products will proceed as individual claims, after a panel of federal judges determined that the cases will not benefit from consolidated pretrial management as part of a single MDL, or multidistrict litigation.

The claims emerged after the independent testing laboratory Valisure released a report in March 2024, warning that benzene forms in acne products made with benzoyl peroxide, often resulting in levels of the cancer-causing chemical that are hundreds of times higher than federally allowed.

Following the discovery, Valisure filed a citizen’s petition with the U.S. Food and Drug Administration (FDA), calling for regulators to stop the sale of all acne products containing the chemical benzoyl peroxide, and various cosmetic manufacturers now face lawsuits over the failure to disclose the risks associated with Benzene exposure, which is known to cause several forms of cancer and other life-threatening health conditions, such as acute myeloid leukemia (AML), Chronic Myelogenous Leukemia (CML), Acute Lymphocytic Leukemia (ALL), Chronic Lymphocytic Leukemia (CLL), Hairy Cell Leukemia (HCL), Non-Hodgkin’s Lymphoma, Multiple Myeloma, Myelodysplastic Syndrome (MDL), Myelofibrosis, Myeloid Metaplasia, Aplastic Anemia and Thrombocytopenic Purpura.

Since each of the benzoyl peroxide acne cream lawsuits raise similar questions of fact and law, a number of plaintiffs filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (JPML), calling for claims pending in various different federal district courts to be transferred to the U.S. District Court for the Northern District of California, for coordinated discovery and pretrial proceedings.

Despite overlapping issues in the cases, the JPML issued an order denying transfer (PDF) on August 1, determining that “centralization is not necessary for the convenience of the parties and witnesses or to further the just and efficient conduct of the litigation.”

The panel heard oral arguments on acne cream lawsuit consolidation at the end of last month, but pointed out in the decision that all but one of the lawsuits filed so far have been brought against an individual defendant and involve a single product line.

“At least twelve different defendants or defendant groups are named in the 35 total actions, yet no defendant group was sued in more than six actions, and four defendants have been sued in only one action,” the JPML noted. “Defendants’ products vary with respect to their formulations, the quantity of benzoyl peroxide they contain, how the products are packaged and stored, and how they are labeled and marketed. Discovery as to any testing done by defendants also will be defendant-specific.”

The decision means the lawsuits will proceed as individual complaints, being subjected to only informal coordination between the parties and courts involved.

Benzene Contamination Problems

The litigation comes following a number of similar lawsuits over the discovery in other consumer products in recent years, including sunscreens, deodorants and dry shampoo.

The benzene contamination problems first emerged in 2021, after testing revealed dangerous benzene levels in 78 sunscreen and after-sun care products, with more than a quarter of those tested having unsafe levels of the cancer-causing chemical. Following the discovery, a number of sunscreen recalls were issued for several different aerosol spray products, including Neutrogena, Aveeno and Banana Boat.

High benzene levels were also found in certain Dove, Nexxus, Suave, TIGI and TRESemmé dry shampoo products, resulting in a Unilever dry shampoo recall in 2021. That benzene contamination stemmed from the propellant used by the manufacturer.

Most recently, in February 2024, an Athletes Foot spray recall was issued after benzene was found in several lots of the antifungal products.