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The head of Johnson & Johnson refused to testify at a U.S. House of Representatives subcommittee hearing this week, which was examining the detection of asbestos in talcum powder, and a leading House Democrat demands Johnson & Johnson turn over documents about what the company knew regarding asbestos in talc, and when it knew it.
On December 10, the House Subcommittee on Economic and Consumer Policy held a hearing on carcinogens in talc and the best methods for asbestos detection.
The hearing comes after Johnson & Johnson was forced to issue a Baby Powder recall that impacted tens of thousands of bottles on October 18. The action was taken after the FDA detected sub-trace levels of chrysotile asbestos in Johnson & Johnson talcum powder, contradicting years of claims by the manufacturer that their popular Baby Powder does not contain the cancer-causing fibers.
House Democrats on the committee invited Johnson & Johnson’s Chief Executive Officer Alex Gorsky to attend, but he refused. The company indicated that it thought the hearing was unfair, due to the involvement of testimony by experts who are also testifying against the company in ongoing litigation brought by consumers diagnosed with cancer following use of talc powder.
Johnson & Johnson faces about 13,000 Baby Powder lawsuits and Shower-to-Shower lawsuits that are pending in the federal court system, which involving similar allegations that women were diagnosed with ovarian cancer, mesothelioma or other injuries that were allegedly caused by regular exposure to talcum powder, which was commonly applied to their bodies on a regular basis for decades.
Although evidence uncovered during the litigation suggests the manufacturer has been aware for decades that asbestos may be present in the talc ingredients, increasing the risk of cancer, Johnson & Johnson has attempted to defend the safety of their popular baby powder, and refused to provide warnings to consumers about the potential cancer risk from talc-based powder.
Subcommittee Chair Raja Krishnamoorthi said he was disappointed in Gorsky’s refusal to appear and defend his company in the face of growing evidence of the presence of asbestos in its talcum powder products.
“There’s evidence that for decades tests have repeatedly found that Johnson & Johnson’s talc-based Baby Powder contained asbestos,” Krishnamoorthi said in his opening statement. “More sensitive testing methods than those used by Johnson & Johnson have detected asbestos in talc.”
Representative Krishnamoorthi questioned why the company has refused to put a cancer label warning on talc-based products, why it appeared to specifically target minorities in its advertising after internal concerns were raised about the possible presence of asbestos, and why it prominently labels its cornstarch-based products’ primary ingredient, but does not do the same for those based on talc.
On the same day, Representative Krishnamoorthi sent a letter (PDF) to Gorsky, requesting documents and information “concerning recent public statements made by Johnson & Johnson casting doubt and sowing consumer confusion about the detection of asbestos” in Baby Powder by the FDA.
The Representative is seeking documents on the company’s decision to limit the recall to just one lot, public statements made following the October 18 recall, it’s response to the FDA regarding the recall, testing data, information on mines and manufacturing facilities, and a number of other marketing decisions.
Talc Asbestos Testing Methods Questioned
A number of witnesses testified at the hearing, including William E. Longo, who has a doctorate in Materials Science and Engineering, and is president of Materials Analytical Services LLC. In his testimony (PDF), Longo questioned Johnson & Johnson’s use of what he describes as less-sensitive testing methods.
“Independent labs throughout the country and over the course of several decades have documented the presence of asbestos in consumer talcum products including Johnson’s Baby Powder. AMA Analytical, Forensic Analytical, MVA Scientific Consultants, our own lab MAS, and Johnson & Johnson’s own consultants – Colorado School of Mines, Dartmouth University, McCrone Associates, Rutgers University, The RJ Lee Group (and others) have all documented asbestos in Johnson’s and other manufacturers’ talcum products over the course of decades” he testified. “The cosmetic talc industry has, in that time, accumulated hundreds, if not thousands of testing results that report “no detectable or quantifiable asbestos.’ These reports, regarded by the manufactures as ‘negative,’ are very misleading as they result from analytical and methodological techniques with poor detection limits.”
When the FDA first announced finding asbestos in one batch of Baby Powder, just 11 days later, Johnson & Johnson announced that its own independent testing found no traces of asbestos in the talcum powder. However, the company then acknowledged that it had to redo the testing, after evidence suggested that it was rushed and that the company tossed some results showing the presence of asbestos, claiming that data was tainted. The company now maintains that the new tests still show no signs of asbestos.
The FDA finding evidence of asbestos contamination in current bottles of Johnson Baby Powder distributed to stores throughout the U.S., is likely to have a major impact on the on-going litigation, and undercut the manufacturer’s defense.
While a number of cases have already resulted in massive damage awards in state courts, after juries found that there was compelling evidence that Johnson & Johnson failed to warn consumers about the risks associated with their product, most of the claims are currently pending in the federal court system, where a U.S. District Judge is currently considering whether expert witness testimony proposed by plaintiffs is sufficiently reliable to permit the cases to proceed to trial.
If Johnson & Johnson is unable to disqualify plaintiffs expert witnesses in the federal court system, it is expected that a series of “bellwether” cases will be scheduled for trial, to gauge how juries respond to certain evidence and testimony that is presented in the federal litigation, and the company will face increasing pressure to consider negotiating talcum powder cancer settlements if they are unable to successfully defend the claims at trial.