Johnson & Johnson Consumer Inc. and Vogue International LLC have made motions to dismiss a potential class action, according to Law360. If successful, this would prevent Johnson & Johnson from facing a second wave of litigation over allegations that its dry shampoos cause cancer.
The class action followed a petition filed with the FDA by Valisure, an online pharmacy and independent laboratory testing company. Valisure is noted for having tested ranitidine products and found high levels of NDMA. In this petition, Valisure claims that it has detected the presence of the carcinogen, benzene, in a number of different dry shampoo products. According to the Valisure report, benzene can be carcinogenic in amounts as small as 1 part per million. In Valisure’s analysis, some brands of dry shampoo tested with as much as 134 parts per million.
Testing by Valisure analyzed 34 brands of dry shampoo, including:
- Bumble and Bumble
- DP Hue
- Eva NYC
- Garnier Fructis
- Kristin Ess
- Not Your Mother’s
- Paul Mitchell Invisiblewear
- Sun Bum
- Sol de Janeria
J&J and Vogue are being sued over OGX. According to the memorandum, the plaintiff Marina Scott learned of Valisure’s petition and filed a potential class action on the basis that she suffered economic injury by purchasing OGX products that “contained or risked containing benzene.”
If the class action proposal is granted, Scott will become the representative of an entire class of plaintiffs injured by benzene. However, J&J and Vogue are motioning not only to dismiss the case, but also to deny class certification to the future plaintiffs.
According to the defendants, Valisure’s petition is the “sole source of information” that the plaintiff relied on. However, they argue that because only some of the tested products contain benzene, there is not sufficient evidence to claim that the potential class members could have been harmed. They conclude that Scott’s class definition is “fatally overbroad” and should not be allowed to proceed. However, if this motion fails, Scott may be able to spark a new, nationwide wave of consumer rights litigation.
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