Rise in Talc Cases Reshapes Traditional Asbestos Litigation

Legislation & Litigation
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A recent rise in litigation linking cosmetic talc with mesothelioma and lung cancer will continue throughout 2020, despite companies abandoning the product in the hope of avoiding costly verdicts.

The number of legal cases is expected to increase by 10% this year, building on an 11% rise in 2019, according to KCIC, a well-regarded consulting firm based in Washington, D.C., that manages asbestos product liabilities.

“A new trend we have started to see is talc allegations showing up in traditional asbestos complaints,” said KCIC Vice President Michelle Potter during a recent webinar that looked at past litigation and future projections.

Potter’s presentation detailed mesothelioma lawsuits and lung cancer complaints that were filed individually, excluding multidistrict litigation. It also excluded the much larger number of ovarian cancer cases that dominate the talc litigation arena today.

Ovarian cancer plaintiffs have been awarded more than $5 billion since the first case was settled in 2013. There are more than 9,000 talc cases currently pending that involve ovarian cancer.

“What is so unique about cosmetic talc litigation is that, not only are many of the products still on the market, but so much of what’s understood about the science and the legal landscape is unfolding in real time through these cases being litigated,” attorney Jim Kramer of Simmons Hanly Conroy said during the webinar.

Talc Litigation Rising Significantly

The first mesothelioma case involving talc only opened in 2016. In 2018, there were 450 cases filed alleging that cosmetic talc had contributed to a mesothelioma or lung cancer diagnosis, according to the KCIC presentation. There were 498 of those cases in 2019.

Projections based on the first quarter of 2020 indicate there will be 548 cases this year.

Approximately 33% of the filings in 2018 were talc-only filings, while the rest involved “traditional asbestos complaints” mixed with talc cases. A majority of these cases allege talc was contaminated by toxic asbestos.

The double-digit increase in talc lawsuits involving asbestos in each of the last two years comes in contrast to a flattening or slight drop in the overall number of traditional asbestos filings, which typically include occupational and second-hand asbestos exposure.

Talc Filings Involve Younger, Female Plaintiffs

There has been a significant increase in asbestos-related lung cancer filings overall, particularly those involving talc.

In 2018, mesothelioma was cited as the cancer caused in 77% of the traditional cases that involved contaminated talc and 100% of those that involved only talc. In 2020, by comparison, mesothelioma is projected to account for only 50% of the cases involving talc.

The female-to-male ratio of asbestos litigation also has changed significantly with the rise in talc-related cases.

Females account for just 28% of traditional asbestos lawsuits involving talc, but they account for 64% of the cases involving only cosmetic talc.

Adding cosmetic talc to the litigation mix also has dropped the age of plaintiffs dramatically, according to Potter’s report.

The average age of the traditional asbestos complaint is 72 and 71 for females and males, respectively. With litigation involving cosmetic talc, the average ages drop to 63 and 58.

Cosmetics Companies Moving Away from Talc

The findings have come in the wake of major manufacturers dropping talc-based products.

Pharmaceutical giant Johnson & Johnson announced earlier this year it was ending talc-based baby powder sales in the United States and Canada.

Many cosmetics companies also have been distancing themselves from talc-based products throughout the past few years.

Chanel, Revlon and L’Oreal, three of the biggest names in cosmetics, have explored talc alternatives in some of their products with mixed success.

Talc, the softest mineral on Earth, is used ubiquitously in myriad cosmetic and personal care products to improve feel, provide lubrication and absorb moisture.

Unfortunately, it is mined in proximity to asbestos, a toxic mineral that can lead to serious health problems, including mesothelioma and lung cancer.

FDA, EPA Debating Talc Regulation Changes

Cosmetics companies still insist that strict in-house talc testing guidelines ensure that the products are safe. At the same time, the U.S. Food and Drug Administration in 2019 found asbestos in nine of 52 cosmetic-talc products it tested.

Both the FDA and the U.S. Environmental Protection Agency are contemplating new regulations in 2020 that could affect the use of talc products and the potential for contamination.

The FDA is considering more exact testing standards for talc in consumer products than are currently being used.

Asbestos is tightly regulated, but with some significant exceptions. There is currently no asbestos ban in the U.S., but a ban remains under consideration by the EPA.

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