Johnson & Johnson Files Writ of Certiorari Regarding FDA Preemption Laws

Johnson & Johnson filed a petition for writ of certiorari to the United States Supreme Court last week regarding whether federal law prevents the state from suing the company for failing to disclose alleged cancer risks posed by its products containing talc.

The Food and Drug Administration does not require talc warning labels on cosmetic products such as Johnson & Johnson’s Johnson’s Baby Powder and Shower to Shower products. However, the Mississippi attorney general commenced an action against Johnson & Johnson in 2014 claiming that it is legally required to use ovarian cancer warning labels. The attorney general is seeking an injunction on Johnson & Johnson to affix a warning label to its talc products and a $10,000 penalty for every bottle of baby powder sold in Mississippi during the last 50 years, court documents state.

Johnson & Johnson appealed to the Mississippi Supreme Court after a lower court denied its motion for summary judgment. The state Supreme Court upheld the decision, ruling that neither the Federal Trade Commission Act nor the Food, Drug and Cosmetic Act preempt the state’s own consumer protection laws in regards to cosmetics.

“The lower courts are making a hash out of preemption law in ways that dangerously flout both congressional commands and important federal policies. This case is the latest—and most extreme—illustration of the trend in judicial defiance and confusion regarding express pre-emption statutes,” the defendants stated. 

Johnson & Johnson argues that the Mississippi Supreme Court’s two central holdings—its decision to apply a presumption against preemption and its view that only notice-and-comment regulations have preemptive force—were made in error. 

The defendants are represented by Orrick, Herrington & Sutcliffe LLP