Monday, 21 August 2017

Johnson & Johnson’s Persistent Talcum Powder Scandal: Yet another Pay-out

Today’s post looks at the news that Johnson & Johnson (J&J), the massive pharmaceutical, medical devices and consumer goods company, has been ordered to pay a massive $417 million to a claimant regarding the company’s failure to ‘adequately warn consumers’ about the cancer-related risks of one of its most famous products – talcum powder. In this post the focus will be on the string of claims that have resulted in awards for the claimants against J&J and what it may mean for the company and its reputation.

Simply put, scandal is never far away from this particular field of medical science and its connection to the public. There have been a vast number of cases over the years which can be described as ‘corporate scandals’, with many becoming etched into the public consciousness. In the U.K. (although the effects were certainly not restricted to the U.K.), perhaps the most famous corporate scandal in relation to the medical sciences field was the case of those affected by the morning sickness drug Thalidomide. The effects of the drug, which after retrospective testing 50 years later was found to be caused by a component of the drug preventing the growth of new blood vessels in embryos, included the child suffering from a number of deformities, with it being stated that the stage at which the pregnant woman took the pill determined the nature of the deformity suffered by the child. This horrific instance of corporate crime and failure, which casts a long and persistent shadow upon society, is just one of a number of unfortunately memorable instances of corporate failure in this field. In France, the Poly Implant Prothése (PIP) scandal which involved the switching of medical-grade silicone for breast implants with industrial-grade silicone resulted in nearly 50 ruptured implants, a wave of litigation and the dissolution of the firm. In the United States, the recent case of the New England Compound Centre and its role in the widespread dispersion of medicine that, because of severely lax standards, resulted in over 700 people being infected with Meningitis with 64 people dead. A recent case against the owner of the centre – Barry J. Cadden – resulted in his acquittal on 25 counts of second-degree murder, but conviction for racketeering and fraud, for which he was sentenced to 9 years in Prison. These clearly are just some of many examples of corporate transgressions that have led to drastic effects upon public health. If we look at J&J however, we see somewhat of a mixed situation.

In the 1980s, J&J were widely praised for their reaction to a similar situation. In 1982 in Chicago, 7 people died as a result of taking pain-relieving ‘Tylenol’ capsules that actually contained potassium cyanide. Yet J&J, who has manufactured the drug, immediately recalled 31 million bottles of the drug and replaced them in a safer tablet-form – it is not known for certain how the drugs came to be tampered with. The company earned praise for its rapid response and forthright sharing of information with the public, an approach which has been discussed widely when looking at crisis-management strategies. Yet, if this period represented a positive view of J&J (relatively speaking), then recent events paint a very different picture. The products in question contain talc, a mineral which is made of magnesium, silicon and oxygen. The mineral is heavily used in a number of J&J products for its ability to absorb moisture – popular products include baby powder and facial powders. However, the American Cancer Society confirms that in its natural form ‘some talc contains asbestos’ which, even though the use of asbestos has been widely prohibited, has still seen the link between the use of talc-based products and cancer claimed and examined on a near-consistent basis. In the early 1970s a possible link between talc and ovarian cancer was established by British scientists, which as a study was followed by further studies in the ensuing decades that claimed women were three times more likely to contract ovarian cancer when they used talc-based products near their genitals. Although J&J were made aware of the associated risks by their suppliers in 2006, the company refused to attach warnings over its usage and that is the central claim to litigation concerned with this issue. In 2006 a federal jury found that J&J should have warned consumers of the risks (without awarding damages), and in recent years the company is facing a wave of litigation. In 2016 the company was ordered to pay $72 million to the family of Jacqueline Fox, $55 million to Gloria Ristesund, $70 million to Deborah Giannecchini, and in 2017 $110.5 million to Lois Slemp and now $417 million to Eva Eheverria; it is suggested that over 1000 women will claim against the company. The names of the women who have been awarded damages was not listed to ignore the details of their individual cases (far from it) but to highlight the remarkable situation that, rather incredibly, just keeps developing. The company responded by stating that ‘we will appeal today’s verdict because we are guided by the science, which supports the safety of Johnson’s Baby Powder’, with the company using tried-and-tested legal defences like the protection offered by the U.S. Supreme Court that states that lawsuits must be confined to states where the alleged wrongdoer i.e. J&J is based. Yet, the recent ruling and the sheer size in relation to previous awards surely hints at a change in the offing.

Ultimately, the trajectory of awarded damages may reveal for us the eventuality that J&J seemingly does not want to face: it is far from inconceivable that talc-based products will be wholly, or mostly prohibited. This case represents a slightly different case in that the divergence in medical opinion and evidence is allowing the scandal to continue unabated, whereas other scandals were arguably much clearer. However, it is contested here that this scandal is just as clear, and the result of the scandal should be forthcoming immediately: the correlation, at the rate it stands at now, between the use of talc-based products and ovarian cancer, is more than enough to take lasting action. The question for regulators across the world – this is not just an American problem – is how many people, and women mainly, have to die or contract ovarian cancer before serious action is taken? Another thousand? Ten thousand? The losses that J&J will incur with the prohibition of one of their famous products should have no bearing whatsoever on the decision to take action and prohibit the sale of talc-based products; unfortunately, the power of the corporation is well and truly at play in this case.

Keywords – Johnson & Johnson, talc, Baby Powder, Scandal, Corporate Scandal, health and safety, public health, consumer protection, corporate power, Thalidomide, Poly Implant Prothése (PIP) scandal, New England Compound Centre, Tylenol, @finregmatters

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