Johnson & Johnson faces a growing number of class action lawsuits following a Neutrogena and Aveeno sunscreen recall issued last month, the latest of which claims the recalled spray actually increases the risk of cancer, instead of preventing it as advertised.
The complaint (PDF) was filed by Minett Fernandez in the U.S. District Court for the District of New Jersey on August 2, presenting claims against Johnson & Johnson Consumer, Inc. as the defendant, for marketing their sunscreens as a way to decrease the risk of skin cancer, without disclosing that the aerosol spray cans contain dangerous levels of the known carcinogen benzene.
Johnson & Johnson announced the sunscreen recall on July 14, after routine testing identified the presence of benzene, which may actually increase the risk of developing the very cancer the products are marketed to prevent.
Benzene is an industrial chemical that has been associated with the development of several fatal forms of cancer, leukemia and other conditions, such as 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 and Myeloid Metaplasia, Aplastic Anemia and Thrombocytopenic Purpura.
Due to the potential health risks, the FDA indicates benzene should not be included in drug or consumer products, if avoidable. However, if benzene is not avoidable, it should be restricted to 2 ppm, FDA regulations state. Testing suggests levels of benzene in the Neutrogena and Aveeno sunscreen may substantially exceed the permissible levels.
Fernandez’s lawsuit indicates she and others who purchased the recalled spray sunscreen products now face a higher risk of cancer. The lawsuit claims neither she nor other consumers would have purchased the sunscreens if they had known of the cancer risks, which were concealed from them for years.
“The Sunscreen Products do not require benzene as an active ingredient, and even if they did, many of the Sunscreen Products still contain more than the FDA’s 2 ppm concentration limit,” the lawsuit notes. “Therefore, the Sunscreen Products are adulterated, misbranded, illegal and unfit for sale in trade or commerce, and legally worthless. No consumer would have purchased the Sunscreen Products had they been truthfully and accurately labeled.”
The lawsuit calls for Johnson & Johnson to pay the class participants the full purchase price of the recalled Aveeno and Neutrogena aerosol sunscreen products.
Last month, plaintiffs requested that all cases filed throughout the federal court system be transferred to the District of New Jersey for pretrial proceedings, to avoid duplicative discovery and conflicting rulings from different judges as the number of cases grows.
In complex product liability litigation, where a large number of claims are filed throughout the federal court system by individuals who suffered similar injuries as a result of the same product, it is common for the federal court system to centralize the litigation for pretrial proceedings. However, if settlements are not reached during discovery or following a series of early “bellwether” trials, each claim may later be remanded back to the U.S. District Court where it was originally filed to go before a jury.