Health Law Daily Mississippi consumer statute not bound by FTC Act, nor FDC Act preemption
Wednesday, April 7, 2021

Mississippi consumer statute not bound by FTC Act, nor FDC Act preemption

By Jeffrey H. Brochin, J.D.

Although Mississippi legislature was "guided by" the Federal Trade Commission (FTC) Act in drafting its Consumer Protection Act, it was not required to follow the cosmetics labeling exception in the FTC Act, and the FDA did not expressly regulate talc cosmetics label warnings.

The Mississippi State Supreme Court has ruled in an interlocutory appeal by Johnson & Johnson (or manufacturer), that in drafting the state’s Consumer Protection Act (CPA or Act), the legislature merely modeled it on the FTC Act, and that while the Act provides that courts will be "guided by" the FTC Act, that did not mean that courts are bound by or limited by the federal Act. Therefore, the FTC Act did not preclude the state’s claim of unfair or deceptive practices by the manufacturer in their failure to warn of cancer risks associated with talc cosmetics (Johnson & Johnson v. Fitch, April 1, 2021, Coleman, J.).

Claims of talcum powder risks. Johnson & Johnson manufactures various products that include talc, among them, Johnson’s Baby Powder which it has sold since the 1890s. Up until 2020, one of the primary ingredients of the product was talc, which is hydrous magnesium silicate, an inorganic mineral that is mined from the earth, and more commonly known as talcum powder. For decades, talc has been at the center of controversy due to various studies claiming an increased risk of ovarian cancer associated with the use of products containing talc.

State consumer lawsuit. In 2014, Mississippi commenced an action against Johnson & Johnson for what it alleged was unlawful, unfair, and deceptive business practices related to its cosmetic talcum powder products. Specifically, the state alleged that Johnson & Johnson failed to warn of the risk of ovarian cancer in women who used talc. In its complaint, the state relied on numerous studies over the last several decades that the state alleged revealed a significant link between the use of talcum powders with an increased risk of ovarian cancer, and the state’s complaint sought, among other things, an injunction pursuant to the state’s CPA to require Johnson & Johnson to warn of the hazards associated with talc use. The state further sought a civil penalty of up to $10,000 for each violation of the Act.

Interlocutory appeal. In response to the state’s action, Johnson & Johnson moved for summary judgment based on two arguments: (1) that the CPA does not apply to the labeling of cosmetic products because it is based on the FTC Act which excludes cosmetics labeling; and (2) that even if the CPA applies, summary judgment was still proper because federal law preempts the state’s labeling claim. The trial court denied Johnson & Johnson’s motion, and the instant interlocutory appeal followed.

State CPA governs labeling claim. Johnson & Johnson argued that the Mississippi Legislature modeled the CPA after the FTC Act, and they pointed out a section of the CPA which provides that "it is the intent of the Legislature that in construing what constitutes unfair or deceptive trade practices that the courts will be guided by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 USCS 45(a)(1)) as from time to time amended." Since the words "guided by" were included, Johnson & Johnson argued that the court was required to construe the CPA in accordance with its federal "parent statute," the FTC Act. The FTC Act explicitly excludes the regulation of labels on cosmetics.

However, the court disagreed, finding that Johnson & Johnson misconstrued the CPA’s rule of construction. While the CPA provides that courts will be "guided by" the FTC Act, that does not mean that courts are bound by or limited by the federal Act. Accordingly, they ruled that the CPA did not preclude the state’s unfair or deceptive practices claim.

No express federal preemption. The court next examined the issue as to whether the federal Food, Drug and Cosmetics Act (FDC Act) preempted the state statute. In 2014, the FDA responded by letter to the Cancer Prevention Coalition’s 1994 and 2008 citizen petitions, both of which requested that the FDA require a cancer warning on cosmetic talc products "because of the risk of ovarian cancer after applying talc in the female genital area." In its letter, the FDA denied the citizen petitions’ request for ovarian cancer warnings because the FDA did not find that the data submitted presented conclusive evidence of a casual association between talc use in the perineal area and ovarian cancer.

Although the FDA letter is considered a final agency action, the agency did not follow the notice and comment rule making process, and therefore the letter was deemed "inaction." And, the court reasoned, through its inaction, the FDA declined to make a requirement regarding cancer warnings for cosmetic products that contain talc. The court noted that where a statute is unambiguous, the court must apply the statute according to its plain meaning, refraining from principles of statutory construction, and that because the FDC Act’s preemption statute requires the existence in federal law of a positive expression of regulation applicable to a specific product, the FDA’s decision not to adopt any such regulation could not be deemed an express preemption. Accordingly, the state’s claim was not expressly preempted by the FDA.

For the foregoing reasons, the court affirmed the trial court’s denial of Johnson & Johnson’s motion for summary judgment.

The case is No. 2019-IA-00033-SCT.

Attorneys: Meade W. Mitchell (Butler Snow LLP) for Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. Patrick C. Malouf (Porter & Malouf, P.A.) for Lynn Fitch.

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

MainStory: TopStory CaseDecisions FDCActNews CosmeticNews LabelingNews PreemptionNews MississippiNews

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