Johnson & Johnson has been found to have known about asbestos in its talcum powder products for some decades now. Our view around here, and it is only an opinion, is that the company is now toast. The class action bar simply will not give up now, whatever the truth of the matter. However, our view is highly coloured by the fact that we actually know something about this sort of thing. An at least some of – arguably all of – this is about how analytical methods have become better over the decades. It being a major mistake to judge past actions by the evidence we can present now therefore.
Johnson & Johnson failed to tell regulators and the public that its baby powder sometimes tested positive for small amounts of asbestos, it was reported yesterday. An investigation by Reuters into previously unpublished court documents found that from at least 1971 to the early 2000s, Johnson & Johnson raw talc and finished powders had occasionally tested positive for small amounts of asbestos, which can cause cancer.
The basic background here. Talc is crushed rock. Asbestos is also a form of rock. The two can indeed be found in close proximity, sometimes we will indeed find that talc has a tad of asbestos in it. The important question being, well, how much? A subsidiary one being, well, how do we tell?
J&J faces major liability risk from lawsuits over a possible link between asbestos in its talc products and cancer. A Reuters investigation released Friday alleged the company was both aware of and worried about the presence of small amounts of asbestos in its baby powder for decades, but didn’t disclose it. The resulting 9 percent plunge in J&J’s stock was the firm’s largest since 2002, and it erased more than $30 billion from the company’s market value. (J&J subsequently released a statement calling the report “one-sided, false and inflammatory.”) It’s not clear why this report drove a sell-off when a July verdict that could result in a $4.7 billion payment to talc plaintiffs didn’t. But it is a reminder of J&J’s enormous downside, even if the worst outcomes remain unlikely for the company.
Our view, just that opinion, is that this will be enough for that carcass to be plucked clean. But that’s not quite our point here:
Most internal J&J asbestos test reports Reuters reviewed do not find asbestos. However, while J&J’s testing methods improved over time, they have always had limitations that allow trace contaminants to go undetected – and only a tiny fraction of the company’s talc is tested.
That’s the heart of it to us. Trace amounts can best be thought of as “too little to worry about”, that rather being determined by how good our methods of finding the stuff are.
To switch an example a little, we don’t like to have uranium and thorium in the metals we use everyday. Not a good idea to surround ourselves with things radioactive really. So, we have limits that we talk about. What we define as trace amounts. 1 ppm is a usable such limit, one in a million parts and that’s actually rather common in stuff that I’ve dealt with. U and or Th below 1 ppm, that’s enough, don’t worry any more.
Back when we started to use these sorts of metals (tungsten, tantalum perhaps, odd rare earths) we could test to perhaps 100 ppm cheaply and easily. We also didn’t know all that much about radioactivity. So, that’s what we defined as trace amounts then. I’ve come across Soviet production from the 1930s which had those sorts of levels. As analytic methods improved – it was long possible to test for lower levels but not to do so cheaply or conveniently – what is “trace” became 10 ppm and then 1 ppm.
The thing is we can now test down to 0.001 ppm, or 1 ppb, part per billion. Something that doesn’t matter for near all metals. We can, in fact, test down to 0.000001 (or however many noughts there) to one part per trillion. Of absolutely no real world significance at all.
So, back to asbestos. Some level in talc? Sure, why not, it’s crushed rock. But what matters are these two things.
1) How much is dangerous? 100 ppm? 0.00001 ppm?
2) What can we test to, 100 ppm or 0.00001 ppm?
Just imagine, for a moment. We can test to 10 ppm, we do test – using statistical methods, not all shipments – to 10 ppm, we think 10 ppm is a not important trace. Now knowledge increases of the dangers, analytical methods improve, we can and do test to 1 ppm. There will be earlier shipments which fail this new and improved test. But is anyone guilty of anything for that?
No, not what is going to happen in court as the mesothelioma lawyers get going, but on that more refined level of actual thought?
Which is what some part of this story is. Over the decades our knowledge of the dangers increased, our ability to check for them did. But we shouldn’t judge actions 50 years ago by the state of knowledge and practice today – we should judge by those extant at the time of the actions. If J&J were knowingly poisoning people by the knowledge and standards of the time then hang the lot of ’em. If according to that past which is a foreign country then, well, what should be done?
Yes, obviously, take care of those damaged by that lack of knowledge of the past. But more than that?