Johnson & Johnson and Baby Powder | “DO NOT USE THIS REPORT”
“DO NOT USE THIS REPORT,” someone at J & J wrote by hand on the original report’s cover [before sending it to the FDA].”
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Words, Art, and Photography: Juno Rylee Schultz (she/her)
Edits by: Morgan Shaver (they/them), Nathan Miller (he/him), Bex Stump (she/her)
It was 2009, and Donna Paduano was suing Engelhard — now owned by chemical giant BASF — and the company was responding to the lawsuit the way it had responded to thousands of others the company had received in the past:
According to Gardiner Harris in his book No More Tears:
“Johnson & Johnson falsely claimed that asbestos had never been found in its laboratories, mines, or talc and cited the false affidavits and sworn statements that Engelhard’s and Johnson & Johnson’s lawyers and executives had created following the settlement of the Westfall case in 1983.”
The thing is, it wasn’t going to work this time. Donna Paduano’s father had access to information that would help ground her statements and testimony. Donna’s father had worked for Glenn Hemstock, whose research into Engelhard’s documented and decades-long attempts to hide the known presence of asbestos in its talc had all been destroyed once the Westfall case was settled in 1983. It didn’t matter though; Hemstock’s deposition had survived the attempts to bury it, and the man was still alive.
Hemstock sat for a deposition about the asbestos he found in a mine previously owned by J & J for a second time in his life. Not only did Hemstock confirm everything, he also calmly expressed outrage regarding all the lies from J & J and Engelhard executives.
It took time for the dust to settle — still, not nearly as long as the infinite half-life of asbestos. That being said, by 2014, with Hemstock’s testimonies and depositions from the 1980s and the late 2000s, there was finally a powerful ruling in hand. The courts had ruled that “attorneys working for Engelhard and J & J might have committed crimes.”
It continued from there, with a plaintiff’s lawyer named Mark Lanier demanding documents from J & J that mentioned asbestos — documents the company had insisted didn’t exist all the previous times the request was made.
The Donna Paduano case proved files containing the word “asbestos,” and a calculated assessment and motive to maneuver around its existence publicly and to others outside the company, all existed within Johnson & Johnson.
In June 2018, Mark Lanier would represent twenty-two women with ovarian cancer while working tirelessly to prove the connection between cancer killing people and Johnson & Johnson, and the actions the company would take to conceal it while manipulating the public’s perception of the company.
Lanier was clear to communicate to the jury and everyone present in the courtroom, from the start, that all twenty-two women had very little in common — all from different walks of life, with nothing in common except the ovarian cancer and believing they could trust Johnson & Johnson (a family company).
Peter Bicks, Johnson & Johnson’s lead defense attorney, would make several attempts to have the case declared a mistrial, including during the first recess.
It should be noted the lengths and efforts — financially, time, and otherwise — that Johnson & Johnson undertook to defend the company’s right to sell products packaged with asbestos because it was cheaper and what the company had always done. Making a change would decrease profits and be admitting fault.
The court returned at 11:19 AM after recess, and Bicks immediately started attempting to articulate that it was the belief of Johnson & Johnson that Lanier was not only making inflammatory remarks about the company but that the burden of proof wasn’t on the side of the company — science and data were.
Bicks then cited studies — many of them done by or through Johnson & Johnson, all of them compromised in some way by the company — that supported the statement that “Johnson & Johnson acted responsibly in selling its products.”
Bicks then categorized Johnson & Johnson Baby Powder as a product that never made much money but that was important to the company because it signified trust, before pivoting to a study the FDA had done in 1986 which had concluded “there’s no need to require a warning label on cosmetic talc.”
Bicks concluded this portion of his remarks by asking the jury to keep an open mind during the plaintiff’s case, with the following assertion before court adjourned for lunch:
“This is from the FDA. This isn’t from Johnson & Johnson. Is there asbestos in Johnson & Johnson’s products? We believe and have always believed that there isn’t.”
Bicks even reiterated that Johnson & Johnson’s own experts and employees use the products on themselves and their family members.
The trial resumed with a swift change of evidence and direction.
Mark Lanier called Dr. Alice Blount, a mineralogy professor at Rutgers University, as the first witness to testify against the claims of Johnson & Johnson.
Dr. Blount testified that during the 1990s, she “bought multiple bottles of Johnson’s Baby Powder and, for the sake of class projects, tested them. She found asbestos in all of them, published, and wrote a letter to Johnson & Johnson describing her results.”
During cross-examination, Bicks argued that perhaps Dr. Blount might have mixed up some of her samples with other materials. Dr. Blount firmly disagreed.
The next witness Lanier called was William E. Longo, the president of Materials Analytical Services, a testing lab in Suwanee, Georgia.
Lanier’s law firm had collected thirty-seven bottles of Johnson’s Baby Powder sold over decades. One from 1978 was retrieved by subpoena from Johnson & Johnson’s own museum at its headquarters. Others were purchased on eBay. Lanier had all of these products tested by Longo, who found asbestos in twenty of the thirty-seven containers. This included the bottle from the Johnson & Johnson museum.
Johnson & Johnson had academic experts and consultants in the medical field that the company could normally call on for interviews and on the news. None of these experts could speak on behalf of Johnson & Johnson in the courtroom, though, under threat of perjury.
According to No More Tears: The Dark Secrets of Johnson & Johnson author Gardiner Harris, “the only asbestos expert the company produced was a geologist from RJ Lee, a for-profit testing and consulting firm whose business largely revolves around litigation defense for asbestos companies.”
Harris explains that the RJ Lee geologist “declared his own testing had failed to find any asbestos in the many jars of Baby Powder that had been examined and declared contaminated by Lanier’s expert.”
Information that is crucial for understanding how experts from RJ Lee are able to make these statements without them being considered lies in a courtroom:
As No More Tears author Harris explains:
“RJ Lee’s expert claimed that asbestos fibers must be a certain shape — very long and very thin — to be considered real asbestos, which is why the company is so popular with asbestos makers, since the shape definition RJ Lee used was so incredibly exclusionary. It would be like defining a car as only Arthur Langer’s old Dodge Dart and saying that any other model, from any other manufacturer, from any other year, could not be called a car. Anything that was not this precise shape, the RJ Lee expert declared, is ‘non-asbestiform,’ although he admitted that he couldn’t declare these non-asbestiform particles to be nonhazardous.”
It is worth highlighting, though, that even in the face of all of these legal maneuvers, which primarily revolve around the intentional and deliberate misunderstanding of the definition of “asbestos,” when the geologist expert from RJ Lee was asked about J & J’s mines under cross-examination, he replied:
“Looking at every talc deposit, all areas of a talc mine, that would be false, yes.”
Johnson & Johnson’s lawyers were revolted by the implications of what was being stated in court, which prompted Lanier to plead with the presiding judge for a private sidebar.
Lanier plainly and privately begged the judge for the right to speak outside of the case, believing Johnson & Johnson, as a company, to be relevant to the case at hand, stating:
“They paint the company out to be a collection of nuns, for lack of a better way of saying it, not wanting the jury to see that they’re working at night as prostitutes, and I ought to get to show the other side of the coin.”
The judge denied the request, though, saying it would paint Johnson & Johnson in an unfair light and corrupt the jury’s view of the company, ruining the case.
Lanier finally got his opening when Dr. Susan Nicholson, the talc safety expert Johnson & Johnson had brought to the trial, mentioned that her mother used Johnson & Johnson’s Baby Powder and she grew up with it.
Lanier asked Nicholson how her mother was doing, suspecting that the answer would give him an entry into a line of questioning he had been driving at since the beginning of the trial.
Nicholson admitted her mother had died at age 63 of ovarian cancer.
Nicholson’s mother was a perfect example of the people Lanier was arguing in defense of, against Johnson & Johnson.
According to No More Tears, “the revelation seemed to have a profound effect on the jury.”
Lanier then was able to continue his streak of proving not only the ignorance of Johnson & Johnson but how willful it was by cross-examining the clinical experts Johnson & Johnson brought.
The experts were even failing quizzes on basic asbestos-type questions that Lanier asserted “a first-year graduate student in the field could easily recite.”
It actually got so bad that Lanier started using a softer tone of voice because of how foolish the supposed experts were looking during the academic demolition that was unfolding in the courtroom.
At the end of the monthlong trial, Johnson & Johnson filed the last possible mistrial motions, “saying the trial should be restarted because the jury had seen evidence that it shouldn’t have.”
Lanier spoke for 75 straight minutes without stopping, explaining “J & J kept selling talcum powder long after rivals had stopped because Johnson’s Baby Powder was the company’s ‘sacred cow’ and ‘golden egg,’ a cherished and iconic brand that instilled trust in every other product.”
Lanier pointed out how many experts are in the field and available to speak but how J & J had handpicked witnesses that lacked credibility and couldn’t even remain consistent during the conversations in the courtroom. He’s quoted on the record as saying:
“They went from opening, ‘No asbestos, no asbestos in talc mines, never have been, all of our mines are clean’ to, now, ‘Okay, well, there may be asbestos, but that’s industrial talc, not cosmetic talc.’
Where did that come from? They mix at the same place and they’re just making that up.”
When the jury returned after a break, J & J’s attorney started referencing old, compromised case studies from the ’70s and ’80s again, which admittedly can sound convincing, considering J & J is often citing the Federal Drug Administration and other, often credible, sources.
Lanier was able to counter and contradict coolly by picking up his protein bar and talking about how it had a warning that it “might contain trace amounts of wheat and soy.”
He argued that it isn’t an active ingredient, or an ingredient at all, but the company is required to disclose it may appear because the company has data suggesting that it can and sometimes does.
Lanier reiterated his point by saying:
“Talcum powder works no better than cornstarch. Their documents say it. Their studies say it. The profit margin just isn’t as high.”
The judge sent the jury away to deliberate, with many expecting it to take quite some time. After all, the case up to that point in the courtroom had taken a month, but interestingly, the jury came back just about an hour later.
The jury asked to see a chart that Lanier had shown estimating the number of asbestos fibers to which each plaintiff had been exposed as a result of Johnson’s Baby Powder.
Another hour later, the jury asked for copies of research cited by both sides, but especially the plaintiff’s side.
The next day at 10:35 AM, the jury asked for scotch tape, a calculator, ice cream sandwiches, four yellow highlighters, and a smoke break.
At 1:20 PM, the jury room intercom buzzed twice, signaling they had come to a verdict.
All 12 jurors had decided J & J had to pay each of the plaintiffs $25 million in compensatory damages, for a total of $550 million. They also ruled that J & J was liable for punitive damages.
Lanier’s closing remarks were noteworthy, simple, and damning:
“This is something where they’ve deliberately exposed hundreds of millions of Americans and let us do this to our children. They have marked this and their company as a baby company so that we would trust the company. They have done things that are outrageous. If you or I ever caused someone to get cancer that was terminal, do you think we’d be able to fall back on, ‘Hey, fine me, you know, a few hundred million dollars?’ Or, if we had a hundred dollars, a dime? No. We’d be in jail.”
An hour later, the jurors alerted the judge that they had reached a decision. By a vote of eleven to one, they awarded $4.14 billion in punitive damages — one of the biggest civil judgments in history.
An appeals court ruling reduced the awarded amount to $2.1 billion but still ruled that significant punitive damages were called for because “Plaintiffs proved with convincing clarity that Defendants engaged in outrageous conduct because of an evil motive or reckless indifference.”
Johnson & Johnson continued making appeals, though, all the way to the Supreme Court, until on June 1, 2021, it was announced the highest court in the United States wouldn’t hear the case.
Johnson & Johnson then transferred the now $2.5 billion amount, after $400,000 of interest was accrued each day it went unpaid, into Lanier’s account the following day.
The leverage of power, control, and the narrative was still largely there.
Johnson & Johnson would insist the FDA was wrong in its testing or the court’s representation of how data was portrayed from their samples until the very end.
In May 2020, when Johnson & Johnson announced it had stopped selling talc-based Baby Powder in the United States and Canada, the reason given was “slowing demand fueled by misinformation around the safety of the product and a constant barrage of litigation advertising.”
Johnson & Johnson would continue selling talc-based baby powder globally until early 2023.
This is the story of Johnson & Johnson (a family company).
“February 2023. Fortune Magazine ranked Johnson and Johnson the most admired corporation in the world for the 21st consecutive year and ranked the company number one on the pharmaceutical industry list for the tenth consecutive year.”
This is the story of Johnson & Johnson and profits over people.
“Extending beyond the company’s measured commercial value, Johnson and Johnson has long been seen as a paragon of ethics. First written in 1943, its credo — among the first and most prominent of corporate mission statements — promises that J & J will never put profits before people: “We believe our first responsibility is…” it begins, not to shareholders, not to owners, not the profit principle itself, but to the patients, doctors, nurses, parents, and others who use Johnson and Johnson products and services.“
This is the story of Johnson and Johnson, a quintessential American company.
“If there is a more American — quintessentially American — company than Johnson & Johnson, I do not know what it is,” Tyler Mathisen, longtime CNBC anchor, said at a network healthcare conference in May 2019. “And in fact, I can’t think of another company in the world, with the possible, possible exception of Coca-Cola, that touches a billion people a day with its products and services as Johnson & Johnson does.”
From the very beginning, it’s clear that Johnson & Johnson has understood the relationship between the perception of its company image, the trust consumers have in its brand and products, and the power that this trust gives the company in how it operates inside our world.
“The association of the Johnson’s name with both the mother-infant bond and mother’s touch as she uses the baby products is known as Johnson & Johnson’s Golden Egg,” a 2008 company slide deck reads internally at Johnson & Johnson.
A 1999 company corporate slide states “Many companies have rational trust” before stating “Only Johnson & Johnson also has real emotional trust.”
The same presentation continues with “Johnson & Johnson’s unique trust results in real business gains for the company.”
These same company slides have an illustration explaining the bond the company is referring to, with a “piggy bank with coins dropping into its slot on the back” with the words “Mother-Baby-Bond” on its side.
This slide deck is titled “Trust is Our Product.”
Gardiner Harris explains the power that this level of trust has given Johnson & Johnson over the years quite succinctly in his book, No More Tears: The Dark Secrets of Johnson & Johnson:
“Internally, the positive associations with both products has been vital in creating and sustaining unusually strong beliefs amongst the company’s employees that J & J is uniquely ethical and an abiding force for good in the world, a faith that paradoxically gives license to lapses that might otherwise not be accepted. Since the 1980s, every new J & J employee has been told soon after their hiring about the company’s response to the 1982 Tylenol poisoning case. The official story is repeated so often within the company that it has become something of a prayer.
Johnson’s Baby Powder and Tylenol have not contributed significantly to J & J’s profits in decades. But their histories remain the company’s defining narratives.”
In August 1971, the FDA decided to hold a bigger and more meaningful meeting with talc manufacturers to discuss the industry’s asbestos problem. This was up from a series of informal meetings that had taken place over the years.
A range of large companies were invited, including representatives from Johnson & Johnson, Pfizer, officials from the FDA, the National Institute for Occupational Safety and Health, the U.S. Geological Survey, among others.
The purpose of the meeting was to “discuss in detail analytical methods for the determination of minor amounts of ‘asbestos-like’ material in talc with particular reference to cosmetic grade talcs.”
Technology was improving, and the whispers of asbestos being a known threat were becoming murmurs around the world as a result.
Nothing concrete was decided during this meeting, but the FDA did walk away from the discussion with an idea that the problem appeared to be bigger than they were aware of.
In December 1971, the FDA hired Professor Seymour Z. Lewin of New York University to analyze consumer talc. By September 1972, Lewin started sharing his findings with the FDA: forty percent of the 102 tested samples were contaminated with asbestos. This included J & J’s Baby Powder and Shower to Shower products.
It was around this same time that the National Institute for Occupational Safety and Health released its own test results of nine popular baby powders using electron microscopy. The results concluded “possible asbestos fiber contamination of commercial baby powders.”
The FDA privately shared Lewin’s findings with J & J and other talc manufacturers from the 1971 meeting.
The visiting scientist from J & J informed the FDA, in writing, that “removing asbestos entirely from talcum powder was impossible and that there was no evidence that small amounts of asbestos hurt people.”
A private lab in Chicago acquired the same samples of Johnson & Johnson’s Baby Powder from Lewin’s lot, and while they did declare the samples free of chrysotile, which contradicted Lewin’s results, they did report “small amounts of tremolite — 0.5 percent in one batch and 0.2 percent to 0.3 percent in others.”
When this report was forwarded to the FDA by Johnson & Johnson, the lab’s line about the tremolite had been eliminated from the record.
“DO NOT USE THIS REPORT” was written by hand on the original report’s cover by someone at Johnson & Johnson before it was sent over to the FDA.
As the EPA, the FDA, individuals in healthcare, and those concerned from academia continued investigating and testing Johnson & Johnson and other products containing talc, Johnson & Johnson continued working to discredit reports and declarations released by healthcare officials.
There was even a brief period where, internally, Johnson & Johnson’s scientists deliberated over a plan to develop an invention to measure and assist in separation of substances in talc.
But this was quickly scrapped because it would mean admitting fault, in addition to costing money and possibly affecting public trust in their products.
By 1973, the FDA’s cosmetics office would propose a testing method that would ensure talc products were 99.99% free of asbestos. It was estimated that a third of talc-based cosmetics would fail this test.
In February 1975, Johnson & Johnson executives met with the FDA, explaining that a 1 percent limit was better than the FDA’s proposed 0.01 percent.
The FDA official reportedly laughed, saying “No mother was going to powder her baby with 1 percent of a known carcinogen regardless…”
Still, with no funding to enforce the regulations that were being proposed, the FDA quietly backed down under the weight of Johnson & Johnson.
This was when Johnson & Johnson started performing their own testing because they had the resources to do so, but as Dr. Susan Nicholson, a Johnson & Johnson talc safety executive, revealed in a 2019 deposition, the company hadn’t sent a single talc test result since 1973.
In 2004, Imerys, J & J’s talc supplier, started placing a cancer warning on every sack of talc delivered to Johnson & Johnson and its other customers after the World Health Organization’s International Agency for Research on Cancer announced that it had placed talc on its list of possible carcinogens.
At the same time, Imerys execs were putting together a formal proposal that the industry would voluntarily phase out talc-based baby powders, body powders, and dusting powders that women use on their genitals.
Imerys was going to ask the FDA to require a cancer warning on any talc powders that remained on the market but never followed through on this. These processes just stopped suddenly.
A few months later, a J & J executive wrote an internal email, dated January 19, 2005, announcing that the Material Safety Data Sheets, or MSDS, would need to have a cancer warning for the shipping label for Shower to Shower, a half-talc, half-corn starch product that was related to the Baby Powder.
A top executive responded four days later: “Do NOT send out any MSDS with this statement on it!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!”
The executive said they would have more information later, but they never did. The company just ignored the law.
In 1994 and 2008, the Cancer Prevention Coalition repeatedly filed citizen petitions asking the FDA to require a cancer warning on products containing talc, relating the problem to the tobacco industry and cigarettes, except without the oversight or anticipated risk.
In 1994 and 2008, the FDA maintained it didn’t have the resources to respond.
By 2013, J & J lost its first Baby Powder cancer lawsuit at a federal court in South Dakota. This verdict allowed other women to start filing lawsuits. Still, Johnson & Johnson would receive backing from the FDA in 2014 that essentially stated the studies being cited couldn’t be used to accurately make the suggested claims, as the asbestos studies themselves hadn’t focused exclusively on women.
It wasn’t concrete logic and didn’t make sense, but then again, neither did most of this story where a company remained so determined to continue poisoning babies and mothers instead of changing and admitting fault.
There is perhaps no company in the world more likely to give you cancer and then try to counter-sue you than Johnson & Johnson.
Between 2010 and 2021, J & J spent $25 billion on litigation, with hundreds of thousands of people filing lawsuits, and the company seemingly taking the time to fight each and every one of them as much as possible.
In January 2023, a federal appeals court tossed out J & J’s bankruptcy ruling, which would have allowed the company to essentially permanently wiggle out of payments ruled legally necessary once an account set up in Texas ran dry. The federal appeals court argued that “the company had no legitimate claim to Chapter 11 protection because it didn’t face financial distress.”
At this time, J & J had a market cap that exceeded $400 billion.
The death and destruction was not confined to just Baby Powder and other products containing talc, as the company would carry the same level of responsibility and ethics into Oxycontin and other pharmaceutical endeavors it would pursue.
In its history, J & J has made it clear that the company will act in whichever way it is legally expected to.
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