Health Law Daily Wrap Up, COSMETICS—S.D. Ill.: Johnson & Johnson unable to dust off baby powder class action, (Dec 29, 2015)

By Mary Damitio, J.D.

A consumer who brought a putative class action against Johnson & Johnson and Johnson Consumer Companies, Inc. (collectively Johnson & Johnson) for failing to warn of the heightened risks of ovarian cancer associated with the use of its baby powder for feminine hygiene purposes did not satisfy the heightened standard for pleading fraud, a district court ruled. However, the consumer did sufficiently allege that she had standing and was granted leave to amend her complaint to set forth specific allegations of Johnson & Johnson’s misrepresentations (Mihalich v. Johnson & Johnson, December 28, 2015, Herndon, D.).

Consumer fraud. The consumer, who had purchased Johnson’s® Baby Powder, brought a putative class that included claims for consumer fraud and unjust enrichment against the companies for failing to warn consumers of the risks of using the baby powder in the female perineum for hygiene purposes. The complaint alleged that the Johnson & Johnson knew that the prolonged use of the talc-based products like the baby powder in the genital area increased the risk of ovarian cancer. In support of her allegations, the consumer cited to national studies that dated back to the 1960s. Johnson & Johnson moved to dismiss based on the failure to state a claim.

Standing. The consumer stated sufficient facts to establish that she had standing to bring the suit because she alleged that she suffered an injury-in-fact by experiencing an economic loss when she purchased a dangerous product that was advertised as safe. As a result, she lost money because she had been denied the benefit of the bargain by purchasing a product that had undisclosed dangers associated with it.

Consumer fraud. The consumer, however, failed to state a claim under Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) (815 ILCS § 505/1 et seq.) because she did not satisfy the heightened pleading requirement of Federal Rule of Civil Procedure 9(b), which required her to set forth specific misrepresentations that Johnson & Johnson made about its product and how the misrepresentations were communicated to her. The consumer was granted leave to amend her complaint to include specific allegations.

The case is No. 14-cv-600-DRH-SCW.

Attorneys: Kevin P. Green (Goldenberg Heller Antognoli & Rowland, PC) for Barbara Mihalich. Matthew David Powers (O'Melveny & Myers LLP) for Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc.

Companies: Johnson & Johnson; Johnson & Johnson Consumer Companies, Inc.

Cases: CaseDecisions CosmeticNews IllinoisNews