January 30 2020
Last week, a friend was visiting from out of town. She needed a washcloth so I directed her to the hall closet.
“Julie, why do you have talcum powder in here!” she yelled from the second floor.
“It causes cancer! Throw it away!” she added.
Sigh…
I chose not to say anything at the moment. Most of my friends are tired of me constantly trying to debunk some scary story they saw on the Internet or scolding them for wasting money on essential oils. So I bit my lip…hard.
But it was a sad reminder of what trial lawyers along with the click-hungry press can do to consumers—frighten them, change their consumer habits, and promote myths about perfectly safe products.
For those who don’t know the background, here’s a quick primer. For years, the giant personal care company Johnson & Johnson has been fighting lawsuits that claim their talcum powder causes cancer. More damaging though, are the false accusations by the media that Johnson & Johnson knew all along that its powder contained cancer-causing asbestos and yet kept this information from consumers.
Both charges are false.
First, Johnson & Johnson has been producing talcum powder for more than 100 years. And the company constantly tests the product to ensure it’s safety. While some studies do show an elevated risk of cancers in African American women who use talcum powder, many other studies do not show this elevation. As with many scientific studies, those that show the elevation show a correlative connection, not causation.
Yet, doubts remain. And those doubts are only strengthened by the news that Johnson & Johnson has chosen to settle some lawsuits. Naturally that leads many consumers to believe that the company is guilty and just wants to pay off these annoying claimants so the whole issue goes away. There are, of course, other convincing reasons for these settlements that don’t suggest guilt.
When cases are scientifically dense, a company must consider the risk that a jury will not understand the complexities of the case. I’m not trying to insult the average juror as being scientifically illiterate, but just consider this study examining the ways in which asbestos is detected in talc:
The currently used analytical methods for identification, characterization and quantitation of asbestos fiber in consumer talcum products include polarized light microscopy, x-ray diffraction analysis, transmission electron microscopy with selected area electron diffraction and electron microprobe techniques.
I consider myself a pretty smart person but those aren’t areas with which I’m familiar because I’m not a mineralogist or geologist or a toxicologist. If I was a juror on this case, I’d be at a disadvantage as my political science degree, my ability to get three kids to three different locations at the same time, and my excellent casserole baking skills would not prepare me to hear evidence about the complexity of asbestos detection in certain minerals.
Large corporations also make cost-benefit analyses every day. In the talc case, the company might ask, is it worth risking billions of dollars in legal fees and potential payouts to defend these lawsuits (now numbering 15,000!) for decades to come? Or would it be better to save money by settling some of these cases now?
Johnson & Johnson pretty much admitted this in media interviews after settling one lawsuit, saying, “In litigation of every nature there are one-off situations where settlement is a reasonable alternative…The decision to resolve any particular case in no way changes our overall position that our talc is safe, is asbestos free and does not cause cancer.”
Sure, sure. It’s a statement from a company spokesperson. Why believe them? Well, because this company is under immense scrutiny. Is it worth lying, especially if that lie will be exposed in a hot second by the press? I doubt it.
There are two important lessons here: For J&J and other large companies, the lesson is that when they cave, even if doing so makes financial or other business sense, their reputation suffers. The other lesson is for consumers who need to realize that they’ll only see press stories about the rulings against J&J and the huge payouts from J&J because that fits the media’s anti-corporate narrative. What they won’t hear about is the fact that Johnson & Johnson won the last four recent court cases and that since 2018, the verdicts have been pretty evenly split–with 8 plantiff wins and 10 defense wins. The media also ignores that judges often reduce the absurdly high settlements awarded by juries.
All of these details matter when it comes to consumer confidence.
