Opinion: US talc litigation a cause for concern

Opinion: US talc litigation a cause for concern

Pictured: David Short (top) and Peter Littlefair

Products containing the mineral talc are set to be removed from UK shelves amid fears they may contain asbestos material following a rise in litigation in the United States, write David Short and Peter Littlefair.

Putting profits over product safety has been the battleground for product liability cases, and beauty products including talc are no different. One alternative to using talc in products is to use corn starch, but due to the cost, companies have risked exposure to asbestos material for consumers.

Health and Safety Executive figures show there were 459 female UK deaths in 2020 from mesothelioma, a fatal disease almost always caused by asbestos. This was a rise of 7 per cent compared with 2019 and higher than the average 416 annual deaths over the previous eight years.

Predictions suggest there will continue to be 400-500 female deaths per year during the 2020s. It is unclear precisely what role talc product exposure will play in the projections. Meanwhile, male figures remain consistent with predictions for decline with the use of asbestos reduced in construction and manufacturing.

The prevalence of talc-based products in the beauty industry as well as wide-ranging use of talc in other areas gives UK consumers cause for concern. In papers filed in a US lawsuit, it was shown as far back as 1957/58, Johnston and Johnston (J&J) was aware of 8 to 10 per cent of its talc containing asbestos. Leading US trial lawyer Brendan Tully has blazed new ground in pursuing American product liability lawsuits for UK victims of mesothelioma in the US on the grounds that corporate decisions to use products containing asbestos and sold in the UK were made in the US.

The use of talc is not limited to J&J. US attorneys are currently in litigation against Avon, Estee Lauder, Clinique and many others. The use of talc is well-known in beauty ranges such as body powders, baby powder, blushers etc but there have been further cases relating to deodorants and foot powders, all linked to asbestos exposure.

Talc provided to the US companies is linked through to the use of talc mines which contained asbestos. Both talc and asbestos are naturally-occurring minerals that may be found in close proximity in the earth. The US companies’ testing methods were not suitable and sensitive enough to test for harmful levels of asbestos in products.

When using these products, the applicator of the talc, whether that be a make-up brush, deodorant or body applicator, is specifically created to disperse the contents onto the individual’s skin around their airways. This is a unique and dangerous change to the usual exposure in construction cases, where asbestos needs to be disturbed to disperse the harmful fibres.

There have been a number of successful multi-million pound claims for women who have contracted mesothelioma due to exposure to these products. The courts have decided the forum for these cases is the US, as decided in Fletcher v Estee Lauder and Clinique and Poole v Johnston and Johnston.

The extent of the cover up from companies in relation to their past exposure of consumers can be shown through papers filed in the US litigation. After the rise of literature surrounding the asbestos/cancer link through the 60s and 70s, J&J sought to prepare its own data. Dr Gavin Hildick-Smith, J&J’s director of medical affairs, hired and wrote to Italian scientists telling the lead researcher in June 1974 that J&J wanted data to “show that the incidence of cancer in these subjects is no different from that of the Italian population or the rural control group”. That research covered up the link between asbestos-related disease and talc, and was then published by the industry. The report was later to be cited in a review article The Biology of Talc, published in November 1976, in the British Journal of Industrial Medicine.

Consumers who contract mesothelioma need to be aware of past exposure which can be significant if talc-based. It is important to note that the lawsuits have to be raised within three years of medical diagnosis. This means that it is possible for UK victims, many of which will be women, to seek compensation from the beauty companies in the US and obtain compensation they deserve.

David Short is partner and Peter Littlefair is a senior associate at Balfour and Manson

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