A lawsuit filed by a woman who alleges she developed mesothelioma from using a cosmetic product tainted with asbestos is not preempted by the federal Food, Drugs and Cosmetics Act because that law’s preemption clause, added in 1997, is not retroactive, a Manhattan judge has ruled.
Supreme Court Justice Sherry Klein Heitler (See Profile) wrote in a Feb. 22 ruling in Feinberg v. Colgate-Palmolive Co., 190070/11, that failure to warn claims in a lawsuit against the manufacturer could proceed.
Editor’s Note: This article has been updated to reflect a Correction.
The suit, filed by Arlene Feinberg and her husband Jacob Feinberg, alleges that Ms. Feinberg developed mesothelioma from using the company’s Cashmere Bouquet talcum powder from the 1950s through 1980s. The suit claims the product contained asbestos. The Feinbergs included a failure to warn claim, which alleges the company should have included a warning label on the powder. Claims of strict liability and negligence are not affected by Justice Heitler’s recent ruling.
Colgate moved to dismiss on the grounds that the failure to warn claims were preempted by the Food, Drugs and Cosmetics Act, which regulates, among other things, the labeling of products. In 1997, the law was amended to include a clause saying that it preempted state law on the issue of cosmetic labeling.
A tin of Cashmere Bouquet talcum powder from the 1950s.
Justice Heitler ruled that the preemption clause does not pertain to injuries sustained before 1997, as the Feinbergs’ allegedly were.
“Colgate’s motion must be denied because it seeks to apply the 1997 Preemption Clause to events that had their genesis more than 45 years before it existed, and which ceased to occur almost twenty years before Congress sought to legislate the labeling of cosmetic products,” she wrote.
The judge noted that the preemption clause does not contain a specific retroactivity provision.
“This is critical given the historical fundamental requirement that retroactivity should not be read into a statute unless the law expressly provides for such relief or necessarily requires it,” she wrote, citing Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994).
Colgate also had argued that the preemption clause applied retroactively because no state could make a law or “continue in effect” an existing law on cosmetic regulation. The judge disagreed.
“No matter how strained an interpretation that Colgate would impose on this language, it does not express Congressional intention of retroactivity,” she wrote. “It is clear to this court that this statutory language evinces an intention to prohibit the imposition of new requirements by the States that would differ from or conflict with federal requirements, and to bar the continuing application of any conflicting State requirements that may have existed before the Preemption Clause came into effect. This language cannot be interpreted to reach back to extinguish any legitimate claims that arose from the use of cosmetic talc products prior to 1997.”
Colgate also argued that the claim was expressly preempted because the Food and Drug Administration had sent a letter to an individual in 1986 saying it saw no reason to require a warning label on talc products for asbestos. Justice Heitler rejected this argument as well.
“[T]here is nothing to show that the FDA ever issued a formal, binding regulation regarding the content labeling of cosmetic talc products,” she wrote. “Absent this critical component, there is no preemption.”
The letter, she added, “is neither a formal regulation nor a guidance document.”
“As a matter of sound policy, this court should not accord the 1986 response letter the broad precedential value Colgate seeks to invest it with,” she wrote. “It does not seem just to require an unpublished letter, the very existence of which was known only to the writer and the one individual to whom it was written, to bind the entire country in terms of the cosmetic talc industry.”
The Feinbergs were represented by Diogenes P. Kekatos and Laurence Nassif of Seeger Weiss.
Audrey P. Raphael, a partner with Levy Phillips & Konigsberg, who represents a party in an action consolidated with the Feinbergs’ claims, said her clients were pleased with the “well-reasoned and well-supported decision that the Federal Food, Drugs and Cosmetic Act does not preempt victims of asbestos-related diseases from suing a cosmetic manufacturer for failing to warn its customers of the dangers of asbestos associated with cosmetic talc.”
Faith E. Gay, a partner at Quinn Emanuel Urquhart & Sullivan who represents Colgate, said, “We feel that the allegation of any kind of asbestos in talc is frivolous. The science is extremely clear that there’s less asbestos particles in cosmetic talc than there is breathing the air in Manhattan walking down the street.”
Ms. Gay said that Colgate intended to take the case to trial if necessary, and would preserve the issue of preemption for appeal.
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