On March 19, the New York State Supreme Court published its first-of-a-kind decision paving the way for a new era of asbestos litigation against manufacturers and distributors of cosmetics products. In Arlene Feinberg and Jacob Feinberg v. Colgate-Palmolive Co. et al., Index No. 190070/11 (N.Y. Sup. Ct. Feb. 22, 2012), the court held that the federal Food, Drug, and Cosmetics Act (the "FDCA") does not prevent plaintiffs from bringing state law claims seeking compensation for asbestos-related injuries.

Case
Arlene Feinberg claimed to be a long-time user of a cosmetic talcum powder product manufactured by Colgate-Palmolive Co. ("Colgate"). The plaintiffs alleged that Arlene had begun using the product in the 1950s, continued to use it for over 30 years (through the late 1980s), and had developed mesothelioma as a result. The talc product Arlene had used did not contain any warning regarding asbestos, and the plaintiffs claimed that Colgate was liable under New York state law for its failure to provide Arlene with an adequate warning of the hazards associated with asbestos.

Finding
Citing a 1997 amendment to the FDCA (the "Preemption Amendment"), Colgate moved to dismiss the plaintiffs' New York law claims on the ground that they were preempted by federal law. The court disagreed, holding that the preemption provision could not be applied retroactively to events that had their genesis decades before Congress enacted the Preemption Amendment. The court further noted that although the plaintiffs' claim may have accrued upon the manifestation of Arlene's disease and after the 1997 Preemption Amendment went into effect, the key time period was when the plaintiff actually used the product, starting in the 1950s.

The court also rejected Colgate's arguments that: (i) a 1986 informal FDA letter ruling expressly preempted state law asbestos claims associated with cosmetics products, (ii) that federal law so thoroughly occupies the cosmetics field that field preemption applies and (iii) that compliance with both federal and state regulation is impossible or state law is an obstacle to Congress' objectives such that conflict preemption applies.

Impact
Based upon the court's ruling, companies that once manufactured or distributed, or have acquired companies that once manufactured or distributed, cosmetics containing ingredients such as talc may find themselves the next group targeted by the asbestos plaintiffs' bar.

Buchanan Ingersoll & Rooney's Litigation Section and Products Liability Group have experience handling matters related to asbestos contamination claims against cosmetic manufacturers and distributors. We are monitoring developments in this area to provide up-to-date guidance on the impact of the Feinberg court. If you would like to discuss how Buchanan's professionals can assist you in similar matters, please contact Kristi Davidson (kristi.davidson@bipc.com).