In our Sunday Long Read this week, The New Yorker's Casey Cep details how corporate consumer giants like Johnson & Johnson knew their products caused cancer and did know for more than 50 years. When faced with judgement however, these companies worth hundreds of billions of dollars simply declare bankruptcy and throw out their verdicts because they "can't pay".
God gives you only one body, Deane Berg always said, so you’d better take care of the one you’ve got. A physician assistant at the veterans’ hospital in Sioux Falls, South Dakota, she knew that spotting between periods wasn’t unusual for a forty-nine-year-old woman, but she went to the doctor anyway. Her two daughters had already lost their father to lung cancer, so Berg wanted to stick around.
Just perimenopause, the doctor concluded after a cursory examination. Probably a blood clot, the nurse practitioner told her when a subsequent ultrasound showed something on an ovary. “It’s not going to be cancer,” the gynecological surgeon said before removing both ovaries on the day after Christmas in 2006. But, when Berg went for her follow-up, she read the words on the pathology report before the surgeon had a chance to break the news: serous carcinoma. She cried, and the surgeon did, too. She would now need a full hysterectomy, chemotherapy, and a great deal of luck. Every year, around twenty thousand women are given a diagnosis of ovarian cancer in the United States, and more than half that many will die of the disease.
Berg told herself that twenty-six years of caring for patients might help her get through the treatments ahead. But her experience with veterans’ port-a-caths did not make it any less painful to have them implanted in her own abdomen and chest; nausea and headaches were no more manageable because she’d counselled others through them. And nothing prepares a person for losing her hair and much of her hearing or developing nerve damage in her hands and feet or having her teeth crack from chemo. Weak and immunocompromised, Berg left her job at the hospital, which meant she had more time to study the handouts about ovarian cancer that nurses had given her when she was diagnosed.
One of those pamphlets was distributed by Gilda’s Club, a group founded by friends of the comedian Gilda Radner, who died of the disease in 1989, when she was only forty-two. The pamphlet included a list of risk factors, which Berg went through one by one. No, she didn’t have a family history of reproductive cancer; no, she hadn’t struggled with infertility and had never used fertility drugs; no, she had never had cancer before; no, she had never had an unhealthy diet or been overweight. Then she came to a section about talcum powder. After reading it, she went to look at the big container of Johnson & Johnson body powder she kept in her bathroom to use after daily showers and the little bottle of Johnson & Johnson baby powder she took with her whenever she travelled. Both listed talc as an ingredient.
Berg immediately posted a message on the forum of the Ovarian Cancer Research Alliance, asking if any other women thought their cancer might have been caused by talcum powder. Only two people replied. The first was a cancer researcher in Illinois who had been trying for more than a decade to get the U.S. Food and Drug Administration to warn American customers that talc could be a carcinogen. The second was R. Allen Smith, Jr., an attorney in Mississippi. He was interested in talking to her about a lawsuit against Johnson & Johnson; she wasn’t convinced he was a real lawyer.
Smith did in fact practice law, and, years before, his father, a doctor, had tipped him off to a contentious debate over the safety of talc—one that continues to this day. A study published in 2020 in the Journal of the American Medical Association, which pooled data from four earlier long-term observational studies and involved a quarter of a million women, found no statistically significant link between talc and ovarian cancer. But, as its authors noted, the underlying studies did not always distinguish between powders that contained talc and those which did not, and were not consistent in asking participants how often or for how long they’d powdered themselves. Many other studies, meanwhile, found a significantly increased risk of ovarian cancer in women who used talc for feminine hygiene—in their underwear, on their sanitary napkins, for storing their diaphragms.
Determining the etiology of diseases is difficult, especially when it comes to cancers, which often have long latency periods and multifactorial causes. But the evidence against talc had grown substantial enough by the time Berg was diagnosed that many U.S. manufacturers, including the makers of crayons, condoms, and surgical gloves, had erred on the side of caution and stopped using it in their products. Why hadn’t Johnson & Johnson done the same, when an alternative, cornstarch, was cheap, abundant, and safer?
Johnson & Johnson is one of America’s most trusted companies, and as Berg moved through her cycles of chemotherapy she kept thinking about a slogan for its body powder: “A sprinkle a day helps keep odor away.” For more than thirty years, she had taken that advice, applying the powder between her legs to prevent chafing. But that powder wasn’t like her chemo drugs: their side effects were awful, but they were keeping her alive. The powder felt, instead, like an unnecessary gamble, one she thought other people should be warned about.
All along, Berg had worried about her daughters—not only how they’d fare if she died but whether her diagnosis meant they had a greater inherited risk of cancer. In 2007, to find out, she underwent genetic testing and learned that she had neither of the two main mutations that increase the odds of developing reproductive cancers. Two years later, she had her ovarian tissue tested, and the pathologist found talc in one ovary. Shortly afterward, with her cancer in remission, she decided to sue, in what became the first baby-powder lawsuit against Johnson & Johnson to ever make it to trial.
Almost every American, from nursery to deathbed, uses Johnson & Johnson products: baby shampoo, Band-Aids, Neosporin, Rogaine, and O.B. tampons; Tylenol, Imodium, Motrin, and Zyrtec; Listerine mouthwash and Nicorette gum; Aveeno lotion and Neutrogena cleanser; catheters and stents for the heart; balloons for dilating the ear, nose, and throat; hemostats and staples; ankle, hip, shoulder, and knee replacements; breast implants; Acuvue contact lenses. But what few of those consumers grasped until a series of baby-powder cases began to go to trial was that, for decades, the company had known that its powders could contain asbestos, among the world’s deadliest carcinogens.
Slippery to the touch and soft enough to flake with your fingernail, the mineral talc is found all around the world, in deposits that can be more than a billion years old. Such deposits are sometimes laced with actinolite, anthophyllite, chrysotile, and tremolite. These accessory minerals, better known in their fibrous form as asbestos, grow alongside talc like weeds in a geological garden. As early as 1971, Johnson & Johnson scientists had become aware of reports about asbestos in talc. They and others also worried about a connection between cancer and talc itself, whether or not it contained asbestos. By the time of Berg’s diagnosis, the World Health Organization’s International Agency for Research on Cancer had designated talc containing fibrous particles a carcinogen and the genital application of any talc powder possibly carcinogenic. The F.D.A. had safety concerns, too, but its authority over products like baby powder was and remains, in the words of Ann Witt, a former senior official at the agency, “so minimal it’s laughable.”
Johnson & Johnson has always insisted, including to this magazine, that its baby powder is “safe, asbestos-free, and does not cause cancer”; however, a 2016 investigation by Bloomberg and subsequent revelations by Reuters and the New York Times, based in part on documents that surfaced because of discovery in suits like Berg’s, exposed the possible health risk related to its powders. Following those reports, tens of thousands of people filed suits against the company, alleging that its products had caused their cancers. In 2020, after juries awarded some of those plaintiffs damages that collectively exceeded billions of dollars, Johnson & Johnson announced that it would no longer supply the talc-based version of its product to American stores.
And then, quietly, the company embraced a strategy to circumvent juries entirely. Deploying a legal maneuver first used by Koch Industries, Johnson & Johnson, a company valued at nearly half a trillion dollars, with a credit rating higher than that of the United States government, declared bankruptcy. Because of that move, the fate of forty thousand current lawsuits and the possibility of future claims by cancer victims or their survivors now rests with a single bankruptcy judge in the company’s home state, New Jersey. If Johnson & Johnson prevails and, as Berg puts it, “weasels its way out of everything,” the case could usher in a new era in which the government has diminished power to enforce consumer-protection laws, citizens don’t get to make their case before a jury of their peers when those laws fail, and even corporations with long histories of documented harm will get to decide how much, if anything, they owe their victims.
And Berg got nothing close to what she deserved for the company giving her cancer. Neither did any of the other plaintiffs who sued after her. J&J now has several subsidiaries, and none of them are responsible for decades of talc asbestos poisoning, and is still doing hundreds of billions in business every year.
America.
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