Miss. AG Says J&J Using Justices’ Time To Delay Talc Trial

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.

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.

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 the AG said that as a governmental enforcement action, her lawsuit is not subject to a bankruptcy hold.

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.

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 rule would have to have gone through a public notice-and-comment period.

LAW360: https://www.law360.com/articles/1437556/miss-ag-says-j-j-using-justices-time-to-delay-talc-trial

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