A report in Reuters dated October 29, 2016 indicated that a woman in California was awarded $70 million in a lawsuit against Johnson & Johnson claiming the company’s baby powder caused her ovarian cancer. She claimed she had used the J&J product for feminine hygiene for 45 years before she was diagnosed with the cancer per a Los Angeles Times report. This trial was in St. Louis where two other plaintiffs had awards of $72 million and $55 million. This initial lawsuit began in 2012 when her daughter saw an ad offering legal representation for people with ovarian cancer who had used talcum powder.
Johnson and Johnson indicated they will appeal the verdict because they are guided by the science, which they state supports the safety of Johnson’s Baby Powder. They further stated that the Food and Drug Administration concluded in 2014 the such labels were not warranted on cosmetic talc products because the danger is not significant.
In my February 2016 blog, I discussed a case where the family of a dead woman was awarded $73 million from Johnson & Johnson for the supposed cause of her death from ovarian cancer that she attributed to the Baby Powder. In that case the award was made knowing the facts that the woman may never have used the Johnson & Johnson product and the talc used by the company since the early 1970s has not involved any of the material from locations that have any presence of asbestos, which is a known issue.
So, what are the implications on companies involved in the application of nanotechnology? How does a start-up survive if every potential product involving nanotechnology might be a potential hazard? And, whether a real hazard or a dreamed hazard, does every product need to be certified by the FDA? Although, that did not help Johnson & Johnson. The issue with this approach is that the full testing and certification can take up to 10 years and cost many millions of dollars. How does this correlate with the fact that the half-life of a start-up is around 18 months? The company will perish well before the effect of its material can be determined. Yes, people will substitute closely related material safety data sheets for new material, but is graphite the same as carbon nanotubes? No.
To add to these considerations, there has been recent research that has shown it is not only the particle size, but the shape of the particles that has implications. While the concern over the shape of the carbon nanotubes has been discussed, these new findings indicate that there can be a large number of materials that can have different configurations at given particle sizes. If this is shown to be true for a number of different particles, it will seriously complicate the research required to evaluate potential health hazards.
So, what is one to do? That is a very good question. Unfortunately, each situation will have a unique answer. Obviously, each company needs to perform due diligence on the materials that are employed and also ensure the workers are protected. The word-to-the-wise is to be prepared for the unexpected, to document your efforts, and ensure that you are in compliance with Federal guidelines. That still does not guarantee protection, but it is a very good start.