Pharmaceutical Industry Lobbyist Requests to be Removed From List of Defendants in Talcum Powder Trials
Defendants in current trials over the link between talcum powder and ovarian cancer include Johnson & Johnson, manufacturer of the most popular baby powder, and Imerys Talc America, supplier of the talc used in the product. However, there has been a third named defendant: the Personal Care Products Council (PCPC). Based in Washington D.C., the PCPC is a trade association and lobbying group, representing over 600 companies that manufacture and distribute personal care products.
Johnson & Johnson is one of their corporate members. The PCPC collects annual dues from its members. In exchange, the organization promotes scientific research, promotes the industry to the public, and lobbies lawmakers on Capitol Hill. According to its website, when companies become members, “the Personal Care Products Council becomes an extension of your staff...[and] works for you to provide balance and shine a positive spotlight on our industry.”
With that relationship comes liability, however. Because of its past promotion of J&J Baby Powder, the PCPC has been named a defendant in more than 2500 lawsuits that have been filed against J&J, in which plaintiffs allege that the product caused their ovarian cancer. This has given J&J's corporate image a black eye – and since PCPC has promoted the company and its products, they arguably bear part of the liability.
The PCPC disagrees with that assessment. They acknowledge that they have represented J&J and Baby Powder to consumers, even to the point of establishing a special committee charged with lobbying members of Congress and federal regulators to promote the product in a positive light. However, attorneys for the PCPC argue that their marketing efforts are protected under the First Amendment right to free speech.
They also argue that their lobbying efforts are also permissible according to legal precedent set under two Supreme Court decisions made during the 1960s – Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. and United Mine Workers v. Pennington. Together, these cases established what is known as the Noerr-Pennington Doctrine, which holds that private entities are immune from liability in connection with lobbying activities – provided there was no corruption (such as bribes or kickbacks) involved.
In addition, PCPC lawyers have cited what are known as anti-SLAPP statutes, which are on the books in 11 states. The acronym stands for “Strategic Lawsuit Against Public Participation.” These laws were intended to protect individuals or small organizations with few legal or monetary resources from lawsuits intended to intimidate, silence or otherwise retaliate.
According to plaintiffs' attorneys, this argument has no merit. They point out that the PCPC is funded by corporate money, which pays them to influence lawmakers and manipulate public opinion. They further allege that, like defendant J&J, the PCPC was aware of scientific evidence pointing toward the causal relationship between talcum powder and ovarian cancer, yet continued to promote products containing the substance.
Currently, J&J is facing two more trials scheduled to begin later this spring. So far, the New Jersey-company has lost five of the first six trials involving talcum powder, with judgments in favor of plaintiffs in excess of $50 million.