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Talc maker denied high court audience over Mississippi cancer warning

After taking up cases on international child abduction and arbitration, the justices shot down an appeal from Johnson & Johnson over state labeling rules. 

WASHINGTON (CN) — The Supreme Court turned away dozens of litigants in its Monday list of orders, bringing Johnson & Johnson to the end of the road in its fight to keep a warning about the risk of ovarian cancer off its products in Mississippi.

Separate from a $2 billion verdict awarded to women in Missouri, the case here stems from a provision of Mississippi's consumer protection act that says talc powder has an increased risk of ovarian cancer when applied to the genital areas.

The mineral used in Johnson's Baby Powder is similar in structure to asbestos, a known carcinogen, and contamination can occur if the minerals are mined from the same location. The cosmetics industry agreed in 1976 that talc products must not contain detectable amounts of asbestos, but the U.S. Food and Drug Administration has not required Johnson & Johnson to put cancer warnings on its talcum powder products.

In Mississippi, the company faces a suit that could cost it $10,000 for each sale of a talc-based product dating back to 1974. Though it claimed that Mississippi's regulation was federally preempted, the state Supreme Court disagreed. 

Johnson & Johnson petitioned the U.S. Supreme Court for a writ of certiorari, saying that varying state rules will be unmanageable for the public. 

“Consumers will soon find drugstore shelves filled with products covered in conflicting warnings,” its attorneys at Orrick Herrington wrote. “Manufacturers will face the threat of huge retroactive penalties for failing to include labels the FDA rejected as scientifically unsound, and will be forced to defend their labels before juries who will second-guess the FDA’s expert judgment. More broadly, rulings like this will undermine dozens of express preemption provisions and nullify the pre-emptive effect of innumerable federal agency actions, subjecting a wide range of federally regulated industries to confusing and contradictory state and local requirements.” 

The Supreme Court did not issue any comment on its decision to turn down the appeal, as is its custom.

“We are pleased that the court denied cert in this case,” Michelle Williams, chief of staff to Mississippi Attorney General Lynn Fitch, said in an email Monday. “As we argued in our brief opposing J&J’s petition, states have important responsibilities in protecting consumers.  As the Mississippi Supreme Court found, Congress did not prevent states from holding companies like J&J accountable in cases like this.”

Representatives for Johnson & Johnson declined to comment. 

While the high court did not add any cases to its calendar in the Monday order list, it granted three writs of certiorari late Friday. 

The court will hear an appeal from Narkis Golan, an American citizen, who fled Italy with her son in 2018 to escape a husband, Jacky Saada, she said was abusive.

A federal judge found that Golan’s son would be put in danger if returned to Italy, but the Second Circuit said the district court should consider ameliorative measures that would allow for his return. The district court then required Golan’s son to be returned to Italy on the condition that Saada stay away from Golan and attend therapy. Golan appealed and the district court imposed new ameliorative measures, including a protective order and a $150,000 payment for Golan. Again, Golan challenged the ruling, but the court of appeals affirmed. 

The case concerns the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction — a law requiring a child who is wrongfully removed from their country of residence to be returned to that country. 

In a case brought by Southwest Airlines, the court will clarity what kind of workers qualify as “transportation workers” in the Federal Arbitration Act. The issue arose over a ramp agent supervisor who filed a collective action against Southwest over a wage dispute. 

Arbitration is also at the heart of the third case that the justices took up Friday, which involves a circuit split about whether international arbitration counts qualify as “foreign or international tribunal” where federal courts can order a person to give testimony or produce documents.

The court previously agreed to hear another case on this issue — Servotronics v. Rolls-Royce — but that case was settled before oral arguments. It has now consolidated two cases — ZF Automotive US v. Luxshare and AlixPartners v. Fund for Protection of Investor Rights in Foreign States — concerning international arbitration disputes.

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