Jennifer C. Braceras from Independent Women’s Law Center talks with Julie Gunlock about recent lawsuits against the makers of baby powder, weed killer, and other household products.
Beverly Hallberg: Hey, everyone. It’s Beverly Hallberg. Welcome to a special pop-up episode of SheThinks, your favorite podcast from the Independent Women’s Forum where we talk with women and sometimes men about the policy issues that impact you and the people you care about most. Enjoy.
Jennifer: Hi, everyone. I’m Jennifer Braceras from Independent Women’s Law Center. Earlier this month, a New Jersey state jury ordered Johnson & Johnson to pay $750 million punitive damages to four people who said the company’s talcum powder caused cancer. That amount was later reduced by the judge to $186.5 million. Here to break down the allegations against Johnson & Johnson and to discuss the recent rise in lawsuits against common household products is Julie Gunlock, director of IWF Center for Progress and Innovation. Welcome, Julie.
Julie: Thanks for having me.
Jennifer: So what’s going on with baby powder? Should we all be afraid to use it?
Julie: No, no. In fact, I use it and I think consumers should feel confident to continue using it. What we see here is a very common thing and it’s not just with Johnson & Johnson. It’s not just with talcum powder. We see a lot of these lawsuits popping up now for, like you said, common household items, but also things like pesticides and certain agricultural products and chemicals in general. What it involves is the use of this particular product caused this particular kind of disease or cancer or health issue. These are very significant lawsuits and as you mentioned, they often come out with pretty serious payout, which are then usually reduced to an appeal. But still, there’s two things that happen here.
First of all, these, these companies are now, when you see these huge payouts, it tends to be a domino effect. Then people will say, “Well, hey, you know, I use that product,” or, “I use that product and I’m now sick, and maybe that’s the connection.” So you’ll see other people piling on and filing lawsuits. That’s a real problem for these companies. But there’s a different thing that happens and that isn’t really affects consumer confidence in these products. So you have people going, “Oh gosh,” this is sort of out of the legal sphere and actually, can even be more damaging I would say because it makes people go, “Oh, I don’t know. Maybe this product isn’t safe.” That’s something that businesses, I think are probably more worried about, just the idea that their products are suddenly seen as unsafe or cancer causing and that can really have a huge impact on the success of their business.
Jennifer: I think one thing that contributes to a lack of consumer confidence is not just the verdicts themselves, but the relentless advertising that the plaintiff’s bar does to recruit plaintiffs to their cause. My 84 year old mother-in-law constantly sees these ads, “If you or someone you know has used Roundup and has cancer, please call this number.” She sees it every single day. [crosstalk 00:03:49] Now, she’s paranoid to go out and garden.
Julie: Well, the interesting thing is too, is that what you don’t hear… It’s not, yes, it’s a relentless advertising, but it’s also the relentless media attention on the negative. Okay? I’ve always said this, and look, this is not just me talking about. If it bleeds it leads is the term that we always hear about the media, right? They’re going to report bad news or scary news, much more than good news because if it clicks, okay, you’re going to click on something bad, rather than maybe you know, “Hey, here’s some good news. This product is totally safe.” That’s not something that’s going to get attention. So you’ve got this relentless media attention.
The truth is, is that, and so again, you have major headlines that come out. You mentioned that case, that settlement that just happened or that ruling that just happened and that massive payout. That got a ton, hundreds of headlines, right? Well, what you don’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. Okay? So they had eight plaintiff wins and 10 defense wins. Okay? But you never hear about the defense wins. Okay? You only hear about the massively huge payouts. What You also don’t hear is that judges are often reducing these absurdly high settlements. It’s not only the advertisements, but it’s also the media attention that is overwhelmingly negative.
Jennifer: Right. As you point out, the media doesn’t cover scientific studies because that’s dry and that’s boring. They cover sensational jury verdicts.
Jennifer: A comprehensive study of 250,000 women that was recently released by the US government and published in the journal of the American Medical Association found no strong link between baby powder and ovarian cancer. I’m just reading that off a Google search I did, but that was one tiny thing.
Jennifer: And I saw it in a scientific journal. CBS News isn’t reporting, not CNN isn’t reporting that. So yeah [crosstalk 00:06:06]
Julie: Because honestly, no, I say that because it’s actually hard to find something that’s reassuring. It is difficult to find something reassuring? But you’re right, it’s out there. It’s just usually buried in these medical journals that no one’s reading.
Jennifer: Right. No one’s going to go online and do the Google research and dig into the JMA Journal before they purchase baby powder, but if they did, what they would find is that it’s perfectly safe.
Julie: No, look, and this is a thing. Look, actually, I blogged on this and I actually noted a study examining the ways in which asbestos is detected in talc. Look, talc is a mineral, right? It comes out of the earth and there can be lots of other minerals in the talc. It’s not always pure. So they have to run tests. A test that was done that detected is a teeny, teeny, teeny amount of asbestos, but that same sample was later tested and found not to have asbestos in it. But of course, you only hear that, “Oh my gosh. One test was… And they found asbestos.” You don’t hear that the followup test didn’t find anything.
I think it’s also important to talk about jury. A lot of these cases, they’re being heard by jurors who are not, they’re not necessarily scientists. Maybe they have a geologist on the jury. Maybe there’s one mineralogist. Maybe there’s one toxicologist.
Jennifer: Highly unlikely.
Julie: Highly unlikely, and let’s talk about… I read these studies. It’s my job to read these things and sometimes I am just mouth agape. I don’t understand what I’m reading because I am not a geologist. I am not a mineralogist or toxicologist. So these things are difficult to understand. You imagine that a jury is sitting there, they see this man or this person or this woman or whatever with a terrible disease who’s suing a big, big, big company. Right? The idea is, I think this is really important, it’s not just that this camp, they deal talc. Talc has asbestos in it and causes cancer. It’s this idea that Johnson & Johnson, and this is the narrative, that Johnson & Johnson has been hiding this from the public for years and years, which is of course untrue, but also an insane business model. They wouldn’t be suing them. They wouldn’t do that.
But the idea is a juror sees this sympathetic figure, someone who’s essentially dying of cancer and the defendant is a gigantic personal care products company. [crosstalk 00:08:44].
Jennifer: Yes, it’s David versus Goliath.
Julie: The subject itself is incredibly complex and scientifically complex. So I’m not surprised juries are awarding these, you’re right, these David and Goliath kind of… They see it as a David and Goliath and they’re giving David these huge payout because it’s hard not to feel bad for David, but that’s a real problem in our legal system and it’s a problem for these cases that again, are very scientifically dense.
Jennifer: Right. It is a problem in our legal system because what you’re asking ordinary people to do is to observe a battle of the experts, if you will, and then to determine which expert and which study they think is most scientifically valid. That is extremely difficult for most people to do and you’re going to get some juries that come out one way and some that come out another way, even if the consensus of the scientific community is really all in one direction.
Julie: Yeah, and this is the other thing. Look, science is not like… I would say the scientific process, it’s almost sort of anathema to the legal process where the legal process you look for evidence that points to a certain way. Well, the scientific inquiry isn’t like that. We’re constantly learning things and evolving and finding new evidence and finding changes. They’re finding evidence that changes the consensus. A lot of times, scientific studies will vary. Even peer reviewed studies will vary. Yes there’s consensus, but there’s wiggle room in there. So it’s really hard in these things because you can find scientific studies that say one thing and find an equally reputable scientific study that says the other thing. Then we all know that there’s a whole nother Pandora’s box of junk science or paid for science or activists provided science that looks official, but really isn’t and is yet, still very convincing to a jury.
Jennifer: Right. The role of the judge really there is to weed out bad type of science and not allow it before the jury, but oftentimes that doesn’t go as it should.
Jennifer: And those things do end up before a jury, which is unfortunate.
Julie: Well, these lawsuits, we’re talking about 15,000 lawsuits now that… Again, I mentioned earlier. We’re seeing this also, there were huge payouts against the chemical glyphosate, which is a very, very safe non carcinogenic pesticide that millions of farmers use safely around the world. There was a judgment recently against glyphosate saying that it causes testicular man’s cancer. Now, that company, it was Monsanto, it’s now Bayer, fighting those lawsuits as well. We have the same kind of situation here where it’s very scientifically dense, it’s very complicated. Again, you have even agencies, health agencies, for instance, international health agencies that are run by very political leadership and basically release reports that are inaccurate and go against really much more respected science in the area.
So we’re seeing this across the board and we’re seeing again, the biggest cost of this is of course, how does this make consumers feel? Who can they trust? They can’t trust the big business, they can’t trust the health organization. It really leaves consumer wondering what products are safe, what products aren’t safe? They start to figure out their own input on this stuff and it’s a huge mess.
Jennifer: The one thing I think is really interesting about both the baby powder cases against Johnson & Johnson and also the Roundup, the glyphosate cases against Bayer is that the companies in both cases have a business incentive to settle these cases, right? There are thousands and thousands of cases with even one or two runaway juries, could be very dangerous. So they have an incentive to settle the cases, but at the same time, they don’t want to pull the products off the shelves because they believe that the products are safe and they can’t put any sort of warning label on the product. In fact, the government prohibits them from putting warning labels on the product because the government says that would be a lie because these things are safe.
So if you’re warning people against something that isn’t true, that’s false advertising. They can’t do that. They don’t want to pull the products off the shelves, but how do they settle the cases without, but also limit future cases from coming forward. They’re actually kind of stuck between a rock and a hard place on this.
Julie: Oh, completely. Completely. The other thing, Johnson & Johnson, actually when I was researching this piece actually I found their statements after they settled one lawsuit. [inaudible 00:14:10] sure 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 talc is safe and asbestos free and does not cause cancer.
Okay, so I found that quote and I put it in my piece because I think it’s important to see that this company is saying, “Look, it’s not about the cancer. It’s asbestos free. We are declaring that.” But again, this doesn’t get an immediate coverage. Look, I understand that businesses have to make these calculations, but when you do that, when you settle because nobody will cover your statement and the media won’t cover the fact that Johnson & Johnson is saying it’s asbestos free and it does not cause cancer, then just by saddling this, you’re sending a message to consumers that is essentially, like you said, it is essentially the warning label. Look, again, I have great sympathy for these companies, but when they settle, and I know that in many cases they don’t have a choice, but it is a message and it is a de facto warning label on their product.
Jennifer: It incentivizes the plaintiff’s bar, incentivizes more law suits.
Julie: That’s exactly right.
Jennifer: They’re not really solving the problem in the long run.
Julie: No, they’re not. Look, I think a lot of corporations, this is why you see the nervousness in sort of the corporate world of these activists organizations that do accuse them of things, right, of environmental degradation of causing health problems. I’ve been following this issue for so long. At one point, some activist group was blaming the toys in happy meals on the entire childhood obesity issue. These activists are really creative. We laugh at that now because that’s sort of past, nobody’s really talking about that. But at the time, that was a major headache for McDonald’s. Okay? You have them sort of doing flip flops and then that caused them to change the happy meals. Do you remember the old happy meals? It was four to six chicken nuggets and a regular sized small fry. Now what you get is the chicken nuggets, it’s like a thumb size fry. Literally, the bag is the size of my thumb.
Jennifer: Oh, that’s hilarious.
Julie: Then you get baby carrots or apple slices, you get like a yogurt or whatever. I mean, fine. But I don’t know any kid that was happy with that, nor any parents that was happy with those changes. So companies really do react to this stuff. They really get nervous when activists start agitating. They look for changes. How can we make these people happy? Ultimately, it’s so that they will go away. It’s not to actually make consumers happy, it’s to make the activists happy.
Jennifer: The activists are never going to be happy, as we know.
Julie: They’re never going to be happy. They’re never going to be happy. The only way that they will be happy really versus Johnson & Johnson is that this talc is pulled off the shelf. That’s what they want. Then they’ll just find a different Johnson & Johnson product. That’s what Johnson & Johnson needs to understand. This isn’t a battle about talc. It’s a battle over their higher line of products.
Jennifer: Well, arguably it’s a battle over capitalism and it’s an attempt by activists to use the court system to redistribute wealth. That’s when you really look at it in the big picture, that’s what it is.
Julie: Yeah. Look, what they tried to do, and I consider the talc case a case of when activists try because they tried the regulatory approach, it often is too slow for them. They’re now in the courts. But ultimately, what they tried to do and they know that this is really effective, is they try to create false consumer demands. What they’re doing now is through these lawsuits and because they know they have partners in the media, they are trying to get people to be so scared that they don’t then purchase talc. Eventually, look if this continues and people can see… In blog post on this, I talked about that, how a friend of mine was like, “Oh do you use this? I hear it causes cancer.’ They’re trying to just put that teeny seed of doubt so that ultimately, it gets pulled off the shelf because nobody’s buying it. The goal is ultimately, to get them off the shelf. They’ll use whatever methods, but the lawsuit is a really nice way of doing it. It kills two birds. It gets people scared and it gives you payout.
Jennifer: Right. So talk to us a little bit about how these mass tort lawsuits threaten innovation generally because your center is really focused on innovation and progress. What do these lawsuits do to that process?
Julie: Yeah, that’s a great question. Interesting, I’ll go back to the glyphosate question. Glyphosate’s a great product, very popular with farmers. They have to use a very, very small amounts of it to be effective. You often see pictures of big scary men all dressed in these sort of hazardous suits and they’re spraying crop or you’ll see a plane dumping, spraying over a field the size of a football field and they’re spraying this stuff out of the back of a plane. Well, it’s actually for an entire football field sized field, you only need about a coke can of glyphosate and the rest is water. It’s mostly water, but it has a little bit of the glyphosate in it. It’s a very effective pesticide. If we get rid of glyphosate, and there’s a tremendous effort to ban this product across the nation and it’s already banned in some European countries, we will have to use much harsher pesticides. Farmers, not me. Farmers will have to use much harsher pesticides that are cancer causing that do cause tremendous damage to the earth and soil.
When I talk about these issues, what frustrates me is often a hundred years ago or 50 years ago when they were using this other class of pesticide that was much harsher, eventually they developed glyphosate, which was an improvement. Now because of ignorance about agriculture and agro chemicals and toxicology and the activists who constantly agitate about this stuff and get the regulatory bodies to back them, you have this situation where we might take a product that’s better, that marked progress in agriculture, we will then get rid of this and we will go back to days where we’re using harsher chemicals. Then of course, the activists will agitate about that one and then some bright guy will invent glyphosate again and we’ll be back to where we were.
This is what frustrates me is you see this cycle all the time, all the time. Often what these people do is they will say, “Look, look, kids are dying. Rates of…” They’ll make up all these statistics. Look, if you look at the human trajectory, we are doing great. We live in better times than ever before. So I think sometimes when you get into these alarmist stories or hear about these alarmist stories, it’s really helpful to sort of pull back and say, “You know what? The world is a better, safer, cleaner, healthier place. Humans are healthier and I’m living longer than ever before.” It’s important to keep that sort of perspective because there’s just an awful lot of alarmist, sort of gobbledygook out there that makes you think the world is getting worse.
Jennifer: I think that’s a great note on which to end, Julie, because really, there’s so much to be optimistic about. As you said, we live in a time of the greatest innovation, economic expansion, health improvements in human history, and it’s important to keep that in mind. It really is. Thank you for joining us again today, Julie. We hope our listeners learn something from this conversation.
Anyone who is interested in learning more about this topic can check out Julie’s work at IWF.org and while you’re there, don’t forget to check out the work of the Independent Women’s Law Center. From all of us here at Independent Women’s Forum, you’re in control. I think, you think, she thinks.