J & J Advocate Says It Should Not Be Defendant in Baby Powder Case

The Personal Care Products Council wants its name off the defendants’ list in multidistrict litigation filed in U.S. District Court in New Jersey by plaintiffs suing Johnson & Johnson over the pharmaceutical giant’s baby powder.

The nonprofit operates as a national cosmetics-industry trade association that has more than 600 members – Johnson & Johnson is one of them – paying annual dues. The dues cover the provision of scientific information by experts in the field, public-relations services on a governmental level and support that is “essential to your business success.”

“When you become a member, the Personal Care Products Council becomes an extension of your staff…,” its Web site states. “The Council works for you to provide balance and shine a positive spotlight on our industry…”

Problem is, in the case of Johnson & Johnson, a negative spotlight is shining on the industry because of the 123-year-old bathroom staple’s link to ovarian cancer. More than $200 million in damages have been awarded to consumers who used the brand and developed the deadly disease, and 2,500-plus cases still are pending in three states.

The council, in defense of its representation of Johnson & Johnson as a member, said its marketing efforts are protected by the First Amendment and pointed out it did not make the baby powder. The plaintiffs said the council created a special committee specifically to lobby and petition legislators and regulators on the safety of Johnson & Johnson’s product. In response, the council said its actions are allowed under the Noerr-Pennington doctrine.

Talcum powder has been used for centuries.

The doctrine is the result of two U.S. Supreme Court cases – E. R.R. Presidents’ Conference vs. Noerr Motor Freight (1961) and United Mine Workers of America vs. Pennington (1965.) Its premise is that those who lobby or petition are immune from product-liability claims unless such lobbying or petitioning is corrupt.

Additionally, the council said anti-SLAPP laws in Washington D.C. and 10 states protect its actions. SLAPPs (Strategic Lawsuits Against Public Participation) generally target groups like the council that communicate with elected official on topics of public interest.

“Because PCPC’s alleged activities arise solely from PCPC’s advocacy on issues of public interest, plaintiffs bear the burden of demonstrating, at this stage in the litigation, that they are ‘likely to succeed on the merits,’” the council told Law360. “To overcome this burden, they must present more than mere allegations.”

The plaintiffs’ attorneys countered, “This motion by the Council was not unexpected. However, this is an entity largely funded by industry…. The Council’s broadly defined mission is to influence public opinion on a national scale, and promote the purported safety of talc to both consumers and regulatory authorities, despite the ample scientific evidence linking the use of talc to ovarian cancer.”