This article is based on a review of documents available at time of publication. In the public interest, we are releasing it now. We’ll continue to report on this issue. —Editor
Now that Justice Brett Kavanaugh has been confirmed by the Senate, sooner or later he may be asked to weigh some damning evidence — that his own father advocated for a product that he knew was carcinogenic to both mothers and fetuses. Unless he recuses himself.
The ironies are piquant: While the son attended private, single-sex religious schools and adopted the traditional Catholic opposition to abortion, and even birth control, on the grounds the government should regulate women’s use of their own bodies and reproduction, the father made millions from the industry that marketed and sold female personal hygiene products — while keeping the government from guarding the consumers’ health and safety.
It’s no exaggeration that stuff like baby powder has smoothed Brett Kavanaugh’s slide into a seat on the highest court in the land.
More than 10,000 active claims in US courts, mostly by women, allege that they got cancer from regular use of talcum products like baby powder. In one case last summer, a jury in Missouri awarded $4.7 billion to a group of 20 such women who sued the biggest manufacturer, Johnson & Johnson — for promoting its products while hiding evidence of the risks to women, their reproductive organs, and their babies.
Sooner or later, one of these cases is likely to come to the Supreme Court. If he fails to recuse himself, Justice Brett Kavanaugh will be asked to consider evidence that his father, Ed, helped J&J market such products — even though they knew they were carcinogenic. Kavanaugh Sr.’s former employer is one of the named defendants in some of the biggest class-action cases filed so far.
And Brett Kavanaugh may yet have to answer tough questions about his own finances — including a down payment on a million-dollar house, and how he paid credit card and other debts: He refused to disclose the source of those funds that came from “within the family” soon after his father received several million dollars from the companies sued in the talc-cancer cases.
Coy If Not Evasive About Legal Opinions
Ed Kavanaugh once hired John Roberts, now the Chief Justice, to fight regulations on the industry that Ed represented for most of his adult life — an industry that made him wealthy, and a fixture on Washington’s social scene as a member of the exclusive Congressional and Burning Tree country clubs, where he helped his son Brett connect with rich and powerful patrons who helped him reach the top.
It’s no exaggeration that stuff like baby powder has smoothed Brett Kavanaugh’s slide into a seat on the highest court in the land.
During the confirmation process, Kavanaugh spoke often about his mother’s work as a judge, but only referenced the personal values his father instilled — nothing about the father’s work or clients.
The all-consuming conflagration over what Brett Kavanaugh did or didn’t do in his high school and college years submerged this potentially volatile — and much more recent — issue.
Despite an extensive record from 12 years as an appellate judge and thousands of pages of written opinions, Kavanaugh was coy if not downright evasive about his own legal opinions, political values, and how he would apply them if confirmed. He deflected questions about “hypotheticals” as somehow irrelevant to his qualifications, stating that he would be a “fair and impartial arbiter” if confirmed.
But in one very large area of the law, he might be asked to recuse himself: product liability, government regulation of product safety and health. One paradox among many is that the conservative effort to roll back regulation has forced victims to seek redress in state courts under state laws that are more protective of their rights — especially California, whose population forms a market so large that big companies must cater to state agencies, like it or not. This puts federal judges in the position of overruling state courts that used to be the conservatives’ favorite bastion in defense of corporate prerogatives.
WhoWhatWhy has yet to find a case in which Judge Kavanaugh has considered the specific issues raised in the talc-cancer lawsuits. But one of his most important written decisions suggests what he might do: In Mills v. Giant of Maryland (2007), he upheld a district court ruling in rejecting the claim by a group that wanted the government to force manufacturers of products containing milk to put warning labels on packages that might be sold to people who are lactose intolerant:
“Tort law does not provide protection from the obvious or ‘widely known’ risks of consuming a particular food … otherwise, a variety of food manufacturers as well as stadiums, bars, restaurants, convenience stores, and hot dog stands throughout the country would be liable to millions … every day.”
In other words, the old standard should prevail: Caveat emptor, let the buyer beware.
Another indication came in the strangely named Priests for Life v. Health & Human Services (2015). There Kavanaugh tried to convince his colleagues on the DC Circuit Court of Appeals to reconsider the priests’ (none of whom are presumed to be parents) claims that the Affordable Care Act’s requirements that health insurance policies include coverage for contraception violated the “right” of the Catholic caregivers (the owners of hospitals) to deny birth control to patients under the Religious Freedom Restoration Act (RFRA).
In Mexichem v. EPA (2017), Kavanaugh ruled that the EPA cannot require companies to replace heat-trapping, ozone-depleting chemicals, hydrofluorocarbons (HFCs), with other substances — one of many cases in which he’s ruled regulators had overreached in efforts to protect the public.
Consumer safety advocates fear that Kavanaugh, court choice of those who champion the unborn fetus over the mother, if necessary, even at risk of her life, won’t protect the mother — or the fetus — from corporations that produce unsafe products.
In a book review for Harvard University, for example, he argued against the long-established precedent — articulated in Chevron v. Natural Resources Defense Council — of giving substantial deference to a regulatory agency’s interpretation of its authority to make rules wherever the law is ambiguous.
To be sure, it is difficult to know with certainty what will come before the court, and Kavanaugh could certainly recuse himself from specific cases that directly relate to his father, or the talc-cancer issue. But the full ramifications are so broad and the court deals with so many related issues that it will be difficult for him to entirely remain hands-off. In addition, the mere fact that this important matter was not even raised either by him or by those questioning him shows how incomplete his vetting process was.
And of course, the talc lawsuits are complicated. Besides ovarian cancers, many of the lawsuits charge that talc (a soft mineral of magnesium trisilicate, refined into a fine, slippery powder) often contains asbestos that causes mesothelioma, a lung cancer, when the powder is inhaled. The manufacturers insist their products are safe and that there’s no evidence in scientific studies to the contrary. But that’s exactly where it gets vexatious for the Kavanaughs père et fils.
Like Father, Like Judge
Since 1906, the Food and Drug Administration has been “the primary guardian of the safety of the nation’s food and drug supply. Every year, the FDA’s 2,100 scientists and 7,000 other employees monitor about $1 trillion worth of products, inspect 15,000 facilities, and examine 80,000 product samples.” But that doesn’t apply to cosmetics and perfumes that go on the body rather than in it.
The cosmetics industry is largely self-regulated. “Cosmetic firms are responsible for substantiating the safety of their products and ingredients,” reads the FDA’s own explanation. The law prohibits interstate trade in “adulterated or misbranded cosmetics” but — largely thanks to the lobbying efforts of Ed Kavanaugh — the FDA does not review new cosmetics for safety before they are marketed and the law does not allow the FDA to order recalls of hazardous cosmetics. Ed Kavanaugh made it his mission to keep it that way.
For more than three decades, while his son Brett was growing up in the toney suburb of Chevy Chase, MD, Everett Edward Kavanaugh worked for the Cosmetic, Toiletry, and Fragrance Association (CTFA), now called Personal Care Products Council (PCPC), whose 600 member companies include giant multinational firms like J&J, Aveda, Clairol, L’Oréal, and Unilever. Once known inelegantly as the Toilet Goods Association, the name change (to CTFA) in 1971 was part of “an organizational ‘metamorphosis’ that prepared the association, and the industry to face a new decade of challenge.” Behind that bit of propaganda was the upsurge of consumer advocacy and environmental activism launched in the 1960s, which prompted Congress in the 1970s to pass legislation protecting air, water, land, and the human body from occupational and industrial hazards and pollutants.
About the time Ed Kavanaugh came over from the US Chamber of Commerce, CTFA was in retreat. In 1976, it established a Cosmetic Ingredient Review (CIR) panel to ward off FDA regulation like that applied to food, beverages, and medical devices. But there was no legal obligation to test the products, to publish results of tests, or divulge test data to the FDA that contradicted the bottom line or the marketing propaganda. The Reagan administration, stocked with economic fundamentalists eager to roll back the the “nanny state” and unleash capitalism — Make America Great Again is a line Trump’s stage-managers filched from that time — took the word of corporate lobbyists like Kavanaugh over consumer advocates, unions, and environmentalists, and kept the FDA out of cosmetics regulation.
Medical researchers warned the cosmetics industry about an association between talc and ovarian cancer as early as 1982 only to be derided or ignored while the companies, led by the biggest producer, Johnson & Johnson, lobbied against any warnings or regulation through their trade association. J&J may have known even earlier that its talcum products contained asbestos. Since the early 1970s, study after study strengthened the statistical case throughout the Reagan years while CTFA pooh-poohed their significance and questioned their methods and integrity. According to the victims, Johnson & Johnson’s own expert warned the company and Ed Kavanaugh’s operation that they were lying about the studies:
On September 17, 1997, Alfred Wehner, a toxicology consultant retained by Johnson & Johnson, wrote a letter to Michael Chudkowski, manager of Pre-Clinical Toxicology at Johnson & Johnson Consumer Products, Inc., stating that on three separate occasions the Talc Interested Party Task Force (TIPTF) of the Cosmetic, Toiletry, and Fragrance Association (CTFA) which included Johnson & Johnson, Luzenac and Sanofi, had released false information to the public about the safety of talc. Specifically addressing a November 17, 1994, statement released by the CTFA, Dr. Wehner said the following:
The response statement dated November 17, 1994, is just as bad. The second sentence in the third paragraph reads: ‘The workshop concluded that, although some of these studies suggested a weak association might exist, when taken together the results of the studies are insufficient to demonstrate any real association.’ This statement is also inaccurate, to phrase it euphemistically. At that time there had been about 9 studies (more by now) published in the open literature that did show a statistically significant association between hygienic talc use and ovarian cancer. Anybody who denies this risks that the talc industry will be perceived by the public like it perceives the cigarette industry: denying the obvious in the face of all evidence to the contrary [emphasis added].
The workshop did not conclude that ‘the results of the studies are insufficient to demonstrate any real association.’ As pointed out above, a “real” statistically significant association has been undeniably established independently by several investigators [emphasis added].
The biggest challenge to CTFA came first from Rep. Henry Waxman (D-CA) who pushed Congress to protect consumers and the environment for two decades, then Ron Wyden, now a US Senator (D-OR), then chairman of a House subcommittee that investigated the cosmetics industry. Wyden cited a database compiled by the National Institute of Occupational Safety & Health (NIOSH) that listed 884 toxic substances used in manufacturing various consumer products, of which 146 were then known to cause tumors in animals; but only 56 of these substances had been studied by a review board the industry established.
Ed Kavanaugh testified to Wyden’s committee in 1988 in response to growing concern about the safety of CTFA members’ products — disputing claims made at an earlier hearing that 47,000 people had been admitted to hospitals in “cosmetic-induced incidents” a year earlier. He promised to commission an “independent” statistical analysis suggesting the number was exaggerated. He also pledged to cooperate with the FDA in providing more data about products.
That conciliatory approach had a dark side: Faced with growing pressure from consumer groups, CTFA took to branding its opponents as “chemical terrorists” and critics as practitioners of “junk science” while wining and dining members of Congress. That brought Kavanaugh a rare taste of negative publicity when ABC secretly videotaped legislators, including the powerful chairman of the House Ways & Means Committee that develops all federal tax laws and loopholes, Dan Rostenkowski (D-IL), frolicking on the beach in Barbados at Ed Kavanaugh’s expense.
Those concerns came to the attention of the late Sen. Ted Kennedy (D-MA), who urged the FDA in 1997 to put a warning label on talc products. The FDA took that suggestion under advisement and asked the manufacturers for more information. But no regulation or warning labels came, as the Clinton Administration, distracted by the investigations into the president’s extramarital conduct, stumbled toward the 2000 election, whose outcome was ultimately decided by the Supreme Court in Bush v. Gore. Brett Kavanaugh was a key player in both the independent counsel’s investigation that led to Clinton’s impeachment and the Bush campaign’s effort to rush Florida vote-counters that led to the Supreme Court’s decision.
At the same time CTFA pushed back on the scientific and regulatory fronts and resisted any attempt to affix warning labels, the industry jealously guarded its products’ ingredients as “trade secrets.”
“Since we are not a part of FDA, there is no obligation to provide information under FOIA,” Dr. F. Alan Andersen, the CIR’s director, explained in an email [in 1998], adding, “The annual budget is not a matter of public record, so that information is not available.” According to a search of the Internal Revenue System’s database of tax-exempt organizations, the CIR had not filed a Form 990, which would contain at least its budget. It is accordingly not known whether the cosmetics industry pays the “experts” on the CIR, much less how much. (The CTFA and PCPC have, however.)
When the new administration took office, Bush rewarded brash young Kavanaugh with a job as deputy to his legal counsel, while Ed Kavanaugh — always polished, urbane but insistent that he was right — plowed ahead with his efforts to insulate the corporations from regulation, a goal fully in line with the Republican agenda:
In 2002, E. Edward Kavanaugh, President of CTFA, wrote a letter to Dr. Kenneth Olden, Director of the National Toxicology Program (NTP) and National Institute of Environmental Health Sciences, U.S. Department of Health and Human Services, in an attempt to stop the NTP from listing cosmetic talc as a carcinogen in an upcoming report. The NTP had already nominated cosmetic talc for this classification. In this letter, according to plaintiffs, the CTFA admitted that talc was “toxic”, that “some talc particles… can reach the human ovaries”, and acknowledge and agreed that prior epidemiologic[al] studies have concluded that talc increases the risk of ovarian cancer in women [emphasis added] (link).
In 2002, the Breast Cancer Fund, Environmental Working Group, National Black Environmental Justice Network, and others launched the Campaign for Safe Cosmetics, which sought legislation and regulation to remove ingredients linked to cancer, birth defects, and other health problems. The UN’s cancer registry and the European Union took steps to warn consumers and ban the use of talc; besides, a cheap natural substitute, used for generations without side effects, was readily available: corn starch.
Yet the Bush Administration, standing by its corporate clients, did nothing. Brett Kavanaugh was the key White House adviser on questions of product liability and “tort reform” to limit lawsuits against companies.
Here, too, Ed Kavanaugh’s organization worked behind the scenes to scuttle international regulations. Directly contradicting his own sworn testimony to that House subcommittee in 1988 that the CTFA had always and would always comply with requests for data and test results, the CTFA’s research arm in 2004 published a talc study by two authors purporting to show it was safe. Later, according to plaintiffs’ lawyers in one trial, neither the authors, J&J, or CTFA disclosed that the authors had been paid by J&J for their work. This is just one event on which lawyers hope to depose Ed Kavanaugh as a witness with CTFA as a defendant.
As its president for 22 years, the elder Kavanaugh made CTFA a powerhouse on Capitol Hill, promoting “industry self-regulation and reasonable governmental requirements.” There was so little to do, judging from the CTFA’s tax returns, that the non-profit outfit took in $27 million in 2004 but spent only a half-million on research, mainly studies that attacked studies of its critics. With Bush reelected, Ed Kavanaugh, 64 years old, retired with a fat package of benefits approaching $14 million, for which the member companies ponied up a special assessment, in favor of a woman with a medical background — a better face for a trade group whose customers were mainly women.
In 2005, Kavanaugh’s final year as head of the group, the CTFA’s annual report warned, “activist groups” are “attacking us on several fronts and taking their messages to consumers. … It is clear that our industry is at a crossroads in the areas of safety, self-regulation and global harmonization, and will require further action on our parts to lead to positive changes.”
That further action included aggressive lobbying against the European Union’s proposed rules to ban some 1,200 products, including some phthalates, from use in cosmetics and to pressure EU members to “harmonize” their laws with the hands-off policies in the Bush Administration.
And CTFA changed its name to Personal Care Products Council (PCPC), gussying up its image for a new generation of women and a growing market of young men, emphasizing consumer “choice” and “freshness” in talc-producers like Johnson & Johnson’s Shower to Shower — suggesting that, rather than just powdering the genitals to keep them “fresh,” the whole body should be doused. Meanwhile, as studies supporting the talc/cancer connection mounted, so did the worst form of evidence: more cancers in more women.
By then, Yale law grad and Federalist Society champion Brett Kavanaugh was working for George W. Bush in the White House, assiduously building the resume, loyalty-points, and patronage that would win him a seat on the second-most important court in the country, the Circuit Court Appeals in DC that handles most cases involving the federal regulatory agencies that his father had fought.
“He is known by my colleagues in Congress as a straight shooter,” Republican Sen. Orrin Hatch said of Brett Kavanaugh’s father in supporting the son’s confirmation as a federal judge in 2006. “In this case, the apple did not fall far from the tree.”
Dad’s windfall from Big Cosmo (a cousin of big Pharma and Bigger Chem) may have served the son, who managed to acquire an expensive house and cushy lifestyle on a federal employee’s salary, while paying off large debts with unexplained sources of cash. In response to questions about his finances, Judge Kavanaugh told his congressional interrogators, “We have not received financial gifts other than from our family which are excluded from disclosure in judicial financial disclosure reports.”
This raises not so much a conflict of interest but a confluence:
The Kavanaughs’ strong anti-regulatory family business and libertarian values serve corporate power by attacking and eroding the ability of the government to regulate big business — except when the power of the state is in service to corporate interests.
Emblematic of this approach is the Baby Powder problem. As a lawyer-lobbyist for chemical firms that specialize in the manufacture of products applied to the human body, the elder Kavanaugh sought to protect his patrons’ “right” to profit by preventing regulators from protecting the public that consumed those products. The son has dedicated himself to doing the same for industry in general.
Juries have trouble understanding the conflicting interpretations of dueling experts about risks of exposure, doses, and statistical analyses of data. But the potential impact of jury verdicts on the bottom line has rattled the industry. And the ripples reach out to their insurance companies, like Berkshire Hathaway’s National Indemnity, Travelers Companies Inc., Chubb Ltd., and The Hartford Financial Services Group Inc., titans of Wall Street who have underwritten the manufacturers and face the prospect of paying out huge claims.
“We are confident that there are multiple grounds for reversal of this jury verdict and that, ultimately, the case will be reversed,” J&J’s CEO Alex Gorsky said after the huge Missouri verdict that threatened to bring down his company. His confidence was not merely wishful thinking: The company’s lawyers have convinced judges to overturn several big jury verdicts. If not, the company could be on the hook for billions in claims. An insurance journal notes that J&J stopped buying product liability coverage in 2005 because it was expensive and not widely available, according to a regulatory filing and court documents. Instead, it has a self-insurance program through a subsidiary, Middlesex Assurance Company Ltd. That may explain why the company fights cases so tenaciously while others settle. The most recent trial, in Los Angeles, ended in a hung jury, but J&J insists it will retry the case. And if it loses, appeal. Presumably, as the phrase goes, all the way to the Supreme Court.
Correction notice, 10/08/2018, 7:50 a.m.: In a previous version of this article, Ed Kavanaugh was said to be 54-years-old in 2005. He was born in 1941, so was 64 at that time.
This article has been updated to reflect that Brett Kavanaugh was confirmed to the United States Supreme Court.