JACKSON, Miss. (WLBT) - The state’s high court has handed the attorney general’s office a victory in its long-running suit against Johnson & Johnson.
On Thursday, the Mississippi Supreme Court dismissed an appeal from Johnson & Johnson to have its case thrown out, remanding it back to Hinds County Chancery Court.
Attorney General Lynn Fitch applauded the decision, saying, “We are pleased that the court decided that this case can move forward and that the state can continue to advocate for Mississippians under our state’s consumer protection laws.”
At the heart of the matter is whether Johnson & Johnson should be required to print warnings on their labels about the use of talc and whether the state can require it under Mississippi statute.
Talc is a primary ingredient in two of the company’s most popular products, Johnson’s Baby Powder and Shower to Shower.
In 2014, the state filed suit against Johnson & Johnson and Johnson & Johnson Consumer Companies for what they say were “unlawful, unfair and deceptive business practices related to its cosmetic talcum powder products.”
“Specifically, the state alleged that Johnson & Johnson failed to warn of the risk of ovarian cancer in women who used talc. In its complaint, the state relied on ‘numerous studies over the last decades’ that the state alleged ‘revealed a significant link between the use of talcum powders with an increased risk of ovarian cancer,’” the court writes.
The attorney general is seeking an injunction requiring the company to include warnings about talc on its labeling, saying that by not including the warning it is violating Mississippi’s Consumer Protection Act.
Mississippi is also seeking a civil penalty of up to $10,000 for each violation of the act. It was not clear how many violations of the act had occurred.
Johnson & Johnson, meanwhile, argues the chancery court should have granted a summary judgment in the case, saying state law does not apply to products regulated by the federal Food and Drug Administration (FDA) or Federal Trade Commission Act.
“Johnson & Johnson argues that the... act explicitly excludes the regulation of labels on cosmetics” and contends that the definition of " ‘false advertisement as an advertisement other than labeling, which is misleading in (a) material respect,’” according to court records.
Attorneys for the company also argued that because the federal government would not act on petitioners’ requests to add a warning to Johnson & Johnson’s labels in 1994 and 2008, that the state cannot require it.
Administrative regulations allow citizens to petition the FDA to change rules pertaining to the enforcement of certain federal laws.
Justices, though, said had the FDA acted on those petitions, Johnson & Johnson might have a leg to stand on. However, the agency’s inaction allowed the state to step in with its own rules.
“The … administration chose not to exercise its regulatory authority, allowing the states the freedom to regulate cosmetics,” they opined. “The state’s claim is not barred by the principles of express or implied preemption.”
The opinion was written by Associate Justice Josiah Coleman, with all other justices concurring.