For the first time, a national retailer of cosmetic products has been dismissed from litigation based on the immunity provision in New Jersey’s Product Liability Act.
On Friday, April 28, 2023, Judge Ana C. Viscomi agreed with a Gordon & Rees team, which included Of Counsel Lee Henig-Elona and Partner Virginia Squitieri, that its client, one of the largest department store retailers in the United States, was not liable based on knowledge concerning the risks of asbestos that emerged in the 1960s and beyond.
Judge Viscomi found that although certain industries and workplaces may have had knowledge of asbestos, this did not mean that retailers had the same knowledge or that they “should have known” at the time. New Jersey’s Products Liability Act, N.J.S.A. 58C-9, provides that once an innocent retailer identifies the manufacturer of the allegedly defective product, the retailer is relieved of all strict liability claims. However, there are three exceptions: if the retailer exercised some significant control over the design, manufacture, packaging or labeling of the product; the retailer created the defect; or the retailer “knew or should have known of the defect.” This provision was the subject of the plaintiff’s opposition. The plaintiff argued that scientific literature, an awareness of asbestos-containing products in workplaces (governed by OSHA), and emerging alleged risks of asbestos contamination in talc in the 1970s should have put the retailer on notice that cosmetic products were defective.
The Gordon & Rees team argued that since it remains heavily disputed that talc-based cosmetic products are even contaminated with asbestos, the retailer could not have known that any product it sold was defective. Indeed, in 1986 the FDA refused to require a cancer warning relating to alleged asbestos in talc, in 2010 product testing by the FDA found no asbestos in the 34 talc products tested using the most sensitive method, and in 2020 the FDA found relatively few products containing asbestos. Given the current state of debate, Judge Viscomi found that the retailer from which the plaintiff allegedly purchased cosmetic products beginning in 1976 was entitled to immunity afforded to retailers.