New Jersey’s top federal judge has tossed claims against a nonprofit cosmetics trade association in multidistrict litigation over the alleged link between Johnson & Johnson’s talcum powder products and ovarian cancer, finding that the group does not have a “legal duty to consumers” to make sure the products are safe.
More than four years after the Personal Care Products Council filed a motion to dismiss, Chief U.S. District Judge Freda L. Wolfson on Wednesday granted its bid to toss negligence, fraud, fraudulent concealment and civil conspiracy claims with respect to allegations that PCPC misrepresented the safety of talc products, which purportedly contained asbestos.
In nixing the negligence claim, Judge Wolfson determined in her written opinion that “PCPC does not have a legal duty to consumers to ensure that its members’ products are safe for consumer use.”
“PCPC is a voluntary trade association that has no control over the ingredients used by cosmetic manufacturers,” the judge said. “PCPC is in no way involved in the manufacture of cosmetic products, like talcum powder, and it does not purport to test its members’ products for safety and warrant that safety to the general public.”
The judge brushed aside the plaintiffs’ examples of how PCPC allegedly took on such a duty, including by publishing standards for testing talc for asbestos and establishing the Cosmetic Ingredient Review, or CIR, which selects an expert panel to assess the safety of cosmetic ingredients.
The association’s “publication of testing standards and ingredient definitions did not create any legal duty to the general public,” Judge Wolfson said, pointing out that cosmetics companies do not appear to be required to “utilize PCPC’s testing standards for talc in order to manufacture and sell their products.”
The fraud and fraudulent concealment claims also fell short because the plaintiffs had failed to show that they relied on PCPC’s alleged misrepresentations, according to the judge. Since those claims cannot survive, the civil conspiracy claim collapsed too.
The plaintiffs’ complaint and opposition to the motion are “devoid of any allegations, let alone evidence, that any plaintiff was aware of the existence of PCPC, that any plaintiff relied on any statement made by PCPC in choosing to use” J&J’s talc products, “or that [any plaintiff] purchased talc because PCPC represented that those products were safe to use,” the judge said.