Mississippi’s attorney general accused Johnson & Johnson of using a “misplaced” petition to the U.S. Supreme Court to delay a looming trial over allegations that the company failed to warn consumers of a possible link between its talcum powder and ovarian cancer.
In response to J&J’s petition seeking to reverse a lower court decision allowing the state of Mississippi’s lawsuit to proceed, Attorney General Lynn Fitch urged the justices on to reject the petition, saying that the lower court’s decision does not have the sweeping precedential impact that J&J claims.
“Petitioners’ arguments — on alleged lower-court division, the importance of those questions, and more — are misplaced,” Fitch wrote. “Petitioners’ attempts to delay this case as trial approaches also counsel against this court’s intervention.”
The Supreme Court of Mississippi had found in April that the state’s 7-year-old lawsuit is not preempted by the U.S. Food and Drug Administration’s authority over cosmetic warning labels.
J&J told the justices on Aug. 30 that the Mississippi high court ruling deepened “entrenched circuit splits” over when federal regulations preempt state law enforcement. But Fitch countered that the argument is a red herring and that the state Supreme Court ruling dealt with a very narrow question about FDA rulemaking.
The attorney general said J&J’s delay tactic is obvious given the company’s recent attempt to pause thousands of talc liability lawsuits across the country by spinning off its cosmetic talc unit into bankruptcy.
J&J has sought to apply its Chapter 11 automatic stay to the Mississippi case, filing a notice of bankruptcy with the Supreme Court on Oct. 18. But Fitch said that as a governmental enforcement action, her lawsuit is not subject to a bankruptcy hold.
“Petitioners apparently take the position that that bankruptcy-court filing means that their petition for certiorari can remain pending for years,” Fitch wrote. “But the Bankruptcy Code’s stay provision exempts cases like this one … This court should not condone petitioners’ effort for further delay.”
The dispute dates back to 2014, when then-Mississippi Attorney General Jim Hood sued J&J for false advertising and insufficient labeling. Hood said J&J failed to inform Mississippi residents about scientific evidence linking the perineal use of talc with an increased risk of ovarian cancer — the theory underlying a surge of suits against the company in recent years.
Hinds County Chancellor J. DeWayne Thomas denied J&J’s attempt to squash the suit in December 2018. The company appealed straight to the Mississippi Supreme Court, arguing that the attorney general’s lawsuit was preempted by the FDA’s 2014 decision not to issue a warning label flagging reported links between talc and ovarian cancer.
The Mississippi high court sided with the attorney general, finding that this 2014 decision was not the sort of official rule that falls under the Food, Drug and Cosmetic Act’s preemption provisions. To qualify for preemption, the state justices said, the rule would have to have gone through a public notice-and-comment period.
In its petition to the U.S. Supreme Court, J&J said the Mississippi opinion set two dangerous precedents: It wrongly analyzed the FDCA based on an assumption that preemption didn’t apply, and it took the stance that all federal agency actions must go through a notice-and-comment period in order to preempt state law.
But Fitch said that neither of these allegations is true. The Mississippi court reached its conclusion by simply interpreting the language of the FDCA, and the court’s stance on federal rulemaking applied only to the FDA and not other agencies, she said.
“Just reading the Mississippi Supreme Court’s opinion shows that neither question that petitioners identify is presented,” Fitch wrote. “No matter what might be said about those questions, this case is not a vehicle for resolving them.”