Almost regardless of what we're doing, we perspire. Running, working, even on an evening stroll--at least in Texas--our bodies work hard to cool us off.
If that's a problem for us now, try to picture the madness of strolling down the boardwalk in the middle of the summer a century ago, casually wearing a suit or an ankle-length dress, and trying to pretend you aren't flat-out drowning in sweat.
Given the obstacles presented by soaking through three dresses a day, it stands to reason that some enterprising individuals would seek out a way to help the damp.
Of all the products that end up at the heart of a lawsuit, I think most people would be surprised to find something as seemingly innocuous as talcum powder on the list. But there are currently hundreds of cases involving Johnson & Johnson and women who claim that they developed serious, sometimes fatal medical conditions, due to prolonged use of talcum powder.
Talcum Products: An Overview
In 1893, the general public saw the first commercial release of talcum powder from Johnson & Johnson--started in 1886, it was an early version of the same huggable multinational industrial conglomerate we all know today.
Derived from talc, a naturally-occurring combination of magnesium and silicon, the powder was first marketed to consumers as a product to combat diaper rash. Shortly after, it expanded to a variety of adult applications as well, based on its success at mitigating sweat and chafing. 122 years later, its image and packaging has occasionally changed, but its moisture-wicking function remains the same.
As a trusted personal hygiene product, talcum was (and is) religiously applied by its users--sometimes twice or three times daily. Entire families have had this product in their medicine cabinets for generations. Current users often recall first exposure to the product at their great-grandparents' homes, sitting on the sink in a tin container (it has since moved to plastic bottles). People have had this stuff shaken onto them since they were babies, and continued doing so when they struck out on their own. I've heard a lot of stories about being able to identify a talcum user by the layer of powder over all their bathroom surfaces.
Which Products Are Involved?
Johnson & Johnson's talc-based products come in a couple of styles, which are functionally the same but have different scents and are marketed to different demographics. Johnson's Baby Powder is still the go-to product for use in diapers, and is also a staple in many adults' hygiene rituals. In an attempt to create and sell to a market of adults who were not keen on so-called "baby products," Johnson & Johnson also created created Shower to Shower.
Other companies also market talcum goods, but Johnson & Johnson is the primary focus of current legal action because of their long history with the product, as well as most epidemiological studies focusing on their goods. That may expand in the future, but at this time litigation is focused on Johnson & Johnson talcum, in its baby powder and Shower to Shower forms.
What is the Talcum Doing?
Talc particles are tiny and hang around in the air like dust, so they do pose a breathing hazard if inhaled, just like any particulate would. This risk has been known for a long time, but the lungs aren't the area of the body that worries talc users lately.
The majority of the adult customer base for talc products is female. The powder has been lauded for decades as a way to combat itching, sweating, or odor in the intimate areas of a woman's body, especially in the humid southern states. Daily application into the underwear or onto a sanitary napkin was a regimen many women grew up with in households where their own mothers and grandmothers had done the same.
The central issue coming more and more to light is frequent female users' increased likelihood to develop cancer in their reproductive tracts--particularly their ovaries.
Applied topically, talc particles are inert and not dangerous. They're great sweat-absorbers, and because the powder is usually perfumed, people say they enjoy the pleasant scent and cooling sensation of applying the product. The particles can't enter the body through the pores of the skin, and generally perspiration washes them off the body by day's end. What they don't catch, the next shower does. In that regard--use on the skin--talc performs fine, so long as you don't breathe too much of it in.
However, women shaking the product into their underwear provide talc particles with a place to enter the body through the vaginal opening. Attorneys for the injured argue that the particles travel through the reproductive tract in small, trace amounts, depositing in the ovaries--more or less the upper terminus of the system.
Because most users of talcum powder have been applying it daily for decades, those trace amounts of talc begin to build on one another. That's allegedly the source of the issue.
How Big is This Problem?
The math shakes out to something like this:
(122 years of availability) x (est. use 2-3 times a day) x (millions of users) = BIG TROUBLE.
Estimates taken in 2015 suggest that almost 20% of American households reported use of Johnson's Baby Powder specifically, expanding to almost 25% when its other talcum products were also factored in. That's 1 in 4 households using Johnson & Johnson talcum.
What's worse, numerous epidemiological studies have reported potential links between talcum use and ovarian cancer for decades:
- In the early 1970's, researchers declared that they had found talc particles in approximately 75% of the ovarian tumors they had inspected through biopsy.
- In 1982, A Harvard University study suggested that use of talcum powder effectively doubled a woman's chances of developing cancer in her reproductive tract. More than that, regular use of the product (as in, multiple times a day--sound familiar?) was cited as almost tripling the likelihood.
Johnson & Johnson took no steps to warn the public about these findings, or to conduct any follow-up research. Company representatives at the time rebutted the study, suggesting there was no definitive link between cosmetic-grade talc and cancer. The research was also considered somewhat skewed, in that until the early 70's talcum often contained asbestos particles. These would later be found to be highly carcinogenic in and of themselves.
- In 1991, Welsh scientists discovered more talc particles embedded in ovarian and cervical tumors.
- Research continued. In 2006 The International Agency for Research on Cancer, part of the World Health Organization, classified talcum powder as a "possible human carcinogen" if used in the female genital area. Lest that sound too definitive, the agency has also flagged pickles and smoked meats as possibly carcinogenic, and has said that hot dogs cause cancer, so it is likely best to view their input with circumspection.
- 2013 - The medical publication Cancer Prevention Research released an epidemiological study reaffirming the 1982 assertion that women who regularly use talcum are up to three times more likely to develop malignant ovarian cancer.
Nothing about adult use or cancer risks.
Johnson & Johnson has stayed fairly close-mouthed related to these findings. It's difficult to know whether they genuinely believe that talcum powder is harmless or if it's a legal strategy to muddy the waters, since they haven't warned the public about this danger. One result is that it means that they can't update their warning labels about the possibility of cancer, because that would mean admitting there's some truth to the allegations. If they do that, they admit negligence for not doing so before, and therefore liability to the injured parties.
So there's nothing on the label about cancer. No warnings. No usage suggestions. In fact, talcum is marketed in exactly the manner it always has been.
What Can Be Done About It?
Only about half the women who are diagnosed with ovarian cancer survive their ordeal, and if they do, it often comes at significant cost to their quality of life. It affects their chances of having children, since the only option in many ovarian cancer cases is a hysterectomy. It also presents significant costs that can last a long time--potentially for the remainder of their lives.
For many older victims of this phenomenon, possibly worse is the idea that they influenced their daughters and granddaughters to use these products daily as well. It certainly isn't their fault if they were misled by the manufacturer and that is heartbreaking.
That's why women and families across the country are fighting back, bringing allegations against Johnson & Johnson for the damages they have suffered. As evidence continues to mount and over 1,200 cases have been filed, Johnson & Johnson would be right to take this very seriously.
One landmark case hit the news earlier this year, when the family of 62-year-old Alabama woman Jacqueline Fox, who was afflicted with ovarian cancer, took Johnson & Johnson to court. A jury awarded her $10 million in actual damages, as well as a further $62 million in punitive damages, which are only awarded when a defendant is found to have exhibited gross negligence.
The jury also found Johnson & Johnson guilty of conspiracy and fraud. According to one of the plaintiff's attorneys,
"Inside Johnson & Johnson folks have known for decades, literally decades, that the talc contained in its products could cause cancer. Instead of warning customers, Johnson & Johnson executives made the deliberate decision to hide the risk and keep on selling. The internal documents tell a horrifying and infuriating story of corporate greed and indifference to human life."
Just three months later, Johnson & Johnson got slammed again and was ordered to pay $5 million actual and $50 million punitive damages to 62-year-old Gloria Ristesund, who underwent a hysterectomy during her cancer treatment. It's believed that with this kind of jury award, Johnson & Johnson is unlikely to continue seeking trials and will likely settle the remaining suits.
While the financial resolution of these cases will probably not be typical, it can be hoped that talcum manufacturers will take this bruising as an indicator that they can't successfully hide the truth from consumers--and shouldn't be trying to in the first place.
Potential Defenses Employed by Johnson & Johnson
The defendant isn't helpless in civil litigation. The burden of proof falls on plaintiffs in these matters, and defendants work to poke holes in their allegations. Johnson & Johnson will undoubtedly appeal the recent judgments against them, and will likely have a measure of success in trimming down the punitive damages awarded to the plaintiffs.
In tort litigation, the outcome of every case is determined by its individual merits and details. If they continue trying to battle individual plaintiffs in court, Johnson & Johnson has at least two defenses they could try:
- The talcum label notes that the product is for "external use only." It is meant for topical application; the argument could be made that applying it to an area of the body with access inside disregards the terms of the warning label. This appears to be the legal hill they've chosen to die on--users' violation of stated terms of use.
This argument shouldn't carry much weight. The warning label does not include any information related to the possible hazards of internal exposure; it only advises its intent for external use. Plaintiffs can likely argue that their use was external, with the unfortunate side effect of some of it making its way into their bodies. After all, application to the skin is well-known to run the risk of internalizing particles through inhalation, which is a similar idea. - The other potential argument would be about causation--more particularly the proximate cause cause of the damage. Proximate cause is generally considered to be the action or issue most directly related to the suffered injury.
One other known factor in the development of reproductive cancer is the human papilloma virus, or HPV. It's estimated that as much as 75 percent of women of reproductive age are infected with one or more strains of the virus, and while it remains inert for most of them, it is known to cause cancer in some cases.Johnson & Johnson could capitalize on this fact to direct attention away from talcum powder as the proximate cause of users' cancers. In this situation, HPV would be what is called a confounder, which is another factor that muddies the waters when identifying the proximate cause of an injury.
Using this argument, J&J might be able to take the steam out of a good many cases, unless a good attorney can connect the talcum powder use to the discovered tumors. As previously noted, though, doctors have located talc particles from biopsies on excised tumors, so this evidence will conceivably be available when needed.
Why This Litigation (and Those Like It) Are So Important
When we talk about a company putting out a drug or a product that can cause harm, we're dealing in the realm of products liability. Inherent to this branch of the law is the idea that manufacturers owe it to the people buying their products to a) make them as safe as possible and b) tell people about the ways that normal use could cause them harm. When they fail to live up to this obligation, it can be posited that they commit an act of negligence. Demonstrable negligence is a cornerstone of seeking damages in product liability claims.
As in many of these claims, the specific type of negligence allegedly demonstrated by Johnson & Johnson is failure to warn. In this instance, that failure appears deliberate and spans decades of foreknowledge.
Successful settlements will help defray the costs for afflicted plaintiffs, but for most, it's not really about the money. It's about sending a message to negligent companies that they are simply not allowed to not pass along potential dangers of the products they sell. Transparency is vital to establishing and maintaining consumer trust.
The sooner they learn that, the better off everyone will be.