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Ron DeSantis wants to break the unions and make a temporary advantage permanent.
This week, DeSantis announced that he is proposing legislation designed to decimate the power of Florida’s teachers unions. It would prohibit dues checkoff, making it excruciating for the unions to collect dues, and outlaw teachers doing union work or handing out union materials on the job. He is also trying to undermine collective bargaining by creating a pot of money dedicated to giving raises to teachers — but setting an expiration date on it, and then claiming that unions fighting for better contracts are placing their members at risk of losing access to that money altogether. It’s not hard to see the logic. In a state where less than 5% of workers are union members, the teachers union is one of the only real bastions of Democratic-leaning labor power. As is always the case when Republicans howl about teachers unions, the pious pose of caring about parents is cover for a deliberate plan to destroy one of the few types of unions that are able to carry influence, even in red states. All of that studied concern for parents never seems to extend to the issue of providing a well-funded public education system for their kids.
People in Florida of all political persuasions often talk of Ron DeSantis as if he is a formidable juggernaut that Democrats can’t hope to restrain. This is false. He is a half-smart, washed up Ivy League baseball player whose defining characteristic is not cleverness or likeability, but overweening ambition. He has a goofy squeaky voice and palpable absence of warmth that will not translate well to the national stage. He is just as immoral as his rivals, but he lacks the polished presentation of Ted Cruz and the magnetic insanity of Donald Trump. Though, as a rule, I do not make electoral predictions, it would not be surprising to see him crash and burn when faced with a presidential campaign that depends, above all, on charisma. It is easy to imagine him as the latest in a long line of media-hyped red state governors whose self-importance crashed and sunk against the rocks of a competitive primary.
Nor is he some sort of king whose hold on Florida should be taken for granted. Florida is, in essence, a 50/50 state that should be extremely competitive in every election. So why did DeSantis win reelection last year by 20 points? Because Democratic turnout in the state plummeted by 20 points compared to the 2018 election, while Republican turnout increased. In 2018, Democrats ran Andrew Gillum, a progressive, younger candidate of color for governor, and almost won; in 2022, they ran a tepid old former Republican, and got whipped. When you don’t give people anything exciting to vote for, they don’t turn out to vote.
Like partisan redistricting, gerrymandering, and showy acts of racist voter suppression, DeSantis’s new salvo against teachers unions is an effort to turn a narrow, temporary advantage into a permanent one. Disenfranchise some Democrats, demoralize the rest, and demolish the few institutions that can sustain their statewide power. This is the DeSantis plan, and he isn’t shy about it. He doesn’t need to be. His base revels in it, and his opposition is weak, scared, and seemingly without a plan.
In Florida, all of the most important macro-issues of American politics are screaming out as we speak. The proud fascism that DeSantis embodies must be met with radicalism. Clinton-esque Democratic attempts to triangulate their way out of the problem are doomed to fail, and will only serve to drive home the untrue impression that Florida is a red state. You can’t equivocate with DeSantis. He puts Black people in jail at gunpoint for voting; he bans books and outlaws Black history teaching with a bluntness that would make George Orwell blush; he demonizes trans kids, perfectly happy to drive a few young people to suicide if it helps him solidify his own position. This guy is not some sophisticated mastermind — he’s an asshole. He is the embodiment of the worst 30% of Floridians, the ones who make the state a national punchline. And those who roll over for him, like the dozens of college presidents who publicly kowtow to his backwards “vision,” are cowards who will find themselves on the wrong side of history when the uncensored textbooks eventually get written.
That is one thing Florida proves: The absolute need for the Democrats to stop being weak and afraid of their own convictions. The second thing it proves is the absolute centrality of organized labor as a path out of the political quandary that afflicts America. Inequality has killed public faith in institutions, and modern media has entrenched national partisanship to a degree that some perceive as hopeless. Unions can roll back inequality. Unions can bring people of different political persuasions together in common cause in the workplace. Unions can show people an actual functioning democracy. Unions can lead regular people to political activism based on principles they learn by fighting for fair treatment for themselves. Unions can be strong enough to serve as a wall that stops the predations of opportunistic, hateful politicians like Ron DeSantis.
But all of that can only happen if many people are in unions. In Florida, as in the rest of the South, they’re mostly not. Unions need to spend much more money to organize new workers. Unions need to spend much more money organizing in the South. The Democratic Party needs to prioritize and enable this to a much larger degree — out of self-interest, if nothing else. Unions can change people, and they can change Florida, and they can change the country. But only if they rouse themselves out of their stupor and organize millions of people.
All of these things are connected. Working people and environmentalists together can unquestionably be a strong enough coalition to control the state of Florida, far stronger than the petty racists and boat-owning car dealers that make up the DeSantis base. Pulling this together requires a strong labor movement, and it requires the Democratic Party helping to build that movement. There is nothing impossible about any of this. The threat here is bigger than one teachers union, or one state. Ron DeSantis intends to make Florida a stepping stone that he will use to walk into the White House and prove that America is still a racist, oppressive nation at heart. Stop him before he gets there. As a native Floridian, I politely call on the Florida Democrats, unions, teachers, and people of all stripes who don’t prefer life in a dystopia: Get your shit together, before it’s too late.
The suicide attack broke a period of relative calm in Peshawar. (photo: ABC)
The mosque was nearly full when the attacker struck. By Tuesday morning, the toll stood at 87, the highest from a bombing in Pakistan in years.
The suicide attack on Monday broke a period of relative calm in Peshawar, the capital of the restive Khyber-Pakhtunkhwa Province in northwestern Pakistan. The northwest has been the site of several attacks on police and military targets in recent months, especially in areas that straddle the border with Afghanistan, and the Pakistani Taliban have claimed responsibility for them.
On Monday, the group denied playing a role in this attack. Earlier, however, some junior commanders of the group claimed in Twitter posts that the bombing had been carried out to avenge the killing of a Taliban leader in a bomb blast in August in Afghanistan. No other group came forward to claim responsibility.
“It was a deafening explosion and I fell on the ground,” said Shabbir Afridi, 40, a government employee who was standing near the mosque at the time of the attack. “When I ran toward the mosque, I saw dust and bodies everywhere.”
The mosque was nearly full, with more than 300 worshipers filling the rows when the blast struck in Police Lines, a heavily guarded neighborhood that is home to several important government and military buildings. An office of the counterterrorism department is nearby, and officials said they were investigating how the suicide bomber managed to breach several security checkpoints to reach the mosque.
The roof caved in from the impact, trapping people under the debris.
“Most of the people are still trapped under the rubble. We fear that the number of casualties could increase,” said Akbar Khan, an official of the Edhi Foundation, a charity that runs a rescue service.
Many of the wounded were rushed to the nearby Lady Reading Hospital, a state-run medical facility, which was a scene of chaos. Doctors were struggling to move the many wounded to operating rooms while relatives thronged the hospital, frantically searching for information about their loved ones.
The hospital was put on alert, more medical personnel were called in, and people were asked to donate blood for the injured, according to hospital officials. By Tuesday morning, the number of wounded stood at 57.
The capital, Islamabad, was put on high alert, with snipers installed on important government buildings and checkpoints tightened on roads entering the city.
In the 1980s, Peshawar became one of the main staging grounds of local and international fighters in their struggle against the Soviet-backed Afghan government across the border. The city also saw a large influx of Afghan refugees.
The city has been scarred by terrorism over the past several decades, with a string of attacks targeting local government buildings and shopping areas. It was also the scene of the country’s most shocking terror event in December 2014, when Taliban militants attacked an army-run public school and killed 147 students and teachers. That attack sent major shock waves across the country and turned many in the public against the militants.
The last terrorist attack on Peshawar was also a suicide bombing, which targeted a mosque in March 2022 and killed more than 60 people. The Islamic State’s regional affiliate, Islamic State Khorasan, or ISIS-K, claimed responsibility.
“A large part of the KP province is in a state of war,” Khawaja Muhammad Asif, the country’s defense minister, told GEO TV, a local television news network. He said the security situation in the province had deteriorated significantly after the Taliban takeover of neighboring Afghanistan in 2021.
The Pakistani Taliban and the Afghan Taliban are separate entities, though they draw strength from some of the same ideological and religious beliefs. Several top Pakistan Taliban commanders have found safe haven in neighboring Afghanistan in recent years.
A peace deal between the Pakistani Taliban and Pakistan’s government broke down last year, and the resurgence of the Pakistani Taliban has strained relations between Pakistan and Afghanistan. The 2021 peace talks were initiated by the prime minister at the time, Imran Khan, whose government allowed many fighters to return from Afghanistan and resettle in the country if they pledged to lay down their arms.
Mr. Khan was ousted from government last year but has been making a spirited effort to return to power. His critics claimed that the peace talks only allowed the militants to regroup and strengthen.
Rights groups in Pakistan urged the government to take action against extremist groups.
“Had the state heeded earlier the warnings from civil society about the resurgence of extremist outfits in the province, it may have been possible to avoid this escalation,” the Human Rights Commission of Pakistan, a private rights group, said in a statement.
The police have been a major target of recent attacks across the Khyber-Pakhtunkhwa province. Police statistics show that 118 personnel were killed in militant attacks in 2022 in the province.
“We, the police, are the soft targets, and no one in Islamabad cares about us, ” said Muhammad, a police officer at a checkpoint in a suburb of Peshawar. He asked to be identified only by his first name out of fears for his security.
“Terrorists want to create fear by targeting those who perform the duty of defending Pakistan,” Prime Minister Shehbaz Sharif said in a statement.
The recent uptick in violence comes as Mr. Sharif is struggling to revive Pakistan’s ailing economy. The Pakistani currency fell to its lowest level against the dollar last week, and the government was forced to drastically increase fuel prices on Sunday in a bid to secure an International Monetary Fund bailout.
The I.M.F. has been pressuring the Pakistani government to cut government subsidies and make other changes to the structure of the economy.
“This is especially challenging for the country, as the surge in terrorist violence has come at a time when the economy is on the brink and politics is deeply polarized,” said Maleeha Lodhi, a former Pakistani ambassador to the United States. “Pakistan’s law enforcement agencies need to step up efforts to contain the surge in terrorist activity since the Taliban’s return to power in neighboring Afghanistan.”
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Tens of thousands of women have filed lawsuits against the company, alleging that its baby powder gave them cancer. (photo: Justin Sullivan/Getty Images)
The company has spent billions on cases about one of its most popular products. As its executives try a brazen new legal strategy to stop the litigation, corporate America takes note.
Just perimenopause, the doctor concluded after a cursory examination. Probably a blood clot, the nurse practitioner told her when a subsequent ultrasound showed something on an ovary. “It’s not going to be cancer,” the gynecological surgeon said before removing both ovaries on the day after Christmas in 2006. But, when Berg went for her follow-up, she read the words on the pathology report before the surgeon had a chance to break the news: serous carcinoma. She cried, and the surgeon did, too. She would now need a full hysterectomy, chemotherapy, and a great deal of luck. Every year, around twenty thousand women are given a diagnosis of ovarian cancer in the United States, and more than half that many will die of the disease.
Berg told herself that twenty-six years of caring for patients might help her get through the treatments ahead. But her experience with veterans’ port-a-caths did not make it any less painful to have them implanted in her own abdomen and chest; nausea and headaches were no more manageable because she’d counselled others through them. And nothing prepares a person for losing her hair and much of her hearing or developing nerve damage in her hands and feet or having her teeth crack from chemo. Weak and immunocompromised, Berg left her job at the hospital, which meant she had more time to study the handouts about ovarian cancer that nurses had given her when she was diagnosed.
One of those pamphlets was distributed by Gilda’s Club, a group founded by friends of the comedian Gilda Radner, who died of the disease in 1989, when she was only forty-two. The pamphlet included a list of risk factors, which Berg went through one by one. No, she didn’t have a family history of reproductive cancer; no, she hadn’t struggled with infertility and had never used fertility drugs; no, she had never had cancer before; no, she had never had an unhealthy diet or been overweight. Then she came to a section about talcum powder. After reading it, she went to look at the big container of Johnson … Johnson body powder she kept in her bathroom to use after daily showers and the little bottle of Johnson … Johnson baby powder she took with her whenever she travelled. Both listed talc as an ingredient.
Berg immediately posted a message on the forum of the Ovarian Cancer Research Alliance, asking if any other women thought their cancer might have been caused by talcum powder. Only two people replied. The first was a cancer researcher in Illinois who had been trying for more than a decade to get the U.S. Food and Drug Administration to warn American customers that talc could be a carcinogen. The second was R. Allen Smith, Jr., an attorney in Mississippi. He was interested in talking to her about a lawsuit against Johnson … Johnson; she wasn’t convinced he was a real lawyer.
Smith did in fact practice law, and, years before, his father, a doctor, had tipped him off to a contentious debate over the safety of talc—one that continues to this day. A study published in 2020 in the Journal of the American Medical Association, which pooled data from four earlier long-term observational studies and involved a quarter of a million women, found no statistically significant link between talc and ovarian cancer. But, as its authors noted, the underlying studies did not always distinguish between powders that contained talc and those which did not, and were not consistent in asking participants how often or for how long they’d powdered themselves. Many other studies, meanwhile, found a significantly increased risk of ovarian cancer in women who used talc for feminine hygiene—in their underwear, on their sanitary napkins, for storing their diaphragms.
Determining the etiology of diseases is difficult, especially when it comes to cancers, which often have long latency periods and multifactorial causes. But the evidence against talc had grown substantial enough by the time Berg was diagnosed that many U.S. manufacturers, including the makers of crayons, condoms, and surgical gloves, had erred on the side of caution and stopped using it in their products. Why hadn’t Johnson … Johnson done the same, when an alternative, cornstarch, was cheap, abundant, and safer?
Johnson … Johnson is one of America’s most trusted companies, and as Berg moved through her cycles of chemotherapy she kept thinking about a slogan for its body powder: “A sprinkle a day helps keep odor away.” For more than thirty years, she had taken that advice, applying the powder between her legs to prevent chafing. But that powder wasn’t like her chemo drugs: their side effects were awful, but they were keeping her alive. The powder felt, instead, like an unnecessary gamble, one she thought other people should be warned about.
All along, Berg had worried about her daughters—not only how they’d fare if she died but whether her diagnosis meant they had a greater inherited risk of cancer. In 2007, to find out, she underwent genetic testing and learned that she had neither of the two main mutations that increase the odds of developing reproductive cancers. Two years later, she had her ovarian tissue tested, and the pathologist found talc in one ovary. Shortly afterward, with her cancer in remission, she decided to sue, in what became the first baby-powder lawsuit against Johnson … Johnson to ever make it to trial.
Almost every American, from nursery to deathbed, uses Johnson … Johnson products: baby shampoo, Band-Aids, Neosporin, Rogaine, and O.B. tampons; Tylenol, Imodium, Motrin, and Zyrtec; Listerine mouthwash and Nicorette gum; Aveeno lotion and Neutrogena cleanser; catheters and stents for the heart; balloons for dilating the ear, nose, and throat; hemostats and staples; ankle, hip, shoulder, and knee replacements; breast implants; Acuvue contact lenses. But what few of those consumers grasped until a series of baby-powder cases began to go to trial was that, for decades, the company had known that its powders could contain asbestos, among the world’s deadliest carcinogens.
Slippery to the touch and soft enough to flake with your fingernail, the mineral talc is found all around the world, in deposits that can be more than a billion years old. Such deposits are sometimes laced with actinolite, anthophyllite, chrysotile, and tremolite. These accessory minerals, better known in their fibrous form as asbestos, grow alongside talc like weeds in a geological garden. As early as 1971, Johnson … Johnson scientists had become aware of reports about asbestos in talc. They and others also worried about a connection between cancer and talc itself, whether or not it contained asbestos. By the time of Berg’s diagnosis, the World Health Organization’s International Agency for Research on Cancer had designated talc containing fibrous particles a carcinogen and the genital application of any talc powder possibly carcinogenic. The F.D.A. had safety concerns, too, but its authority over products like baby powder was and remains, in the words of Ann Witt, a former senior official at the agency, “so minimal it’s laughable.”
Johnson … Johnson has always insisted, including to this magazine, that its baby powder is “safe, asbestos-free, and does not cause cancer”; however, a 2016 investigation by Bloomberg and subsequent revelations by Reuters and the New York Times, based in part on documents that surfaced because of discovery in suits like Berg’s, exposed the possible health risk related to its powders. Following those reports, tens of thousands of people filed suits against the company, alleging that its products had caused their cancers. In 2020, after juries awarded some of those plaintiffs damages that collectively exceeded billions of dollars, Johnson … Johnson announced that it would no longer supply the talc-based version of its product to American stores.
And then, quietly, the company embraced a strategy to circumvent juries entirely. Deploying a legal maneuver first used by Koch Industries, Johnson … Johnson, a company valued at nearly half a trillion dollars, with a credit rating higher than that of the United States government, declared bankruptcy. Because of that move, the fate of forty thousand current lawsuits and the possibility of future claims by cancer victims or their survivors now rests with a single bankruptcy judge in the company’s home state, New Jersey. If Johnson … Johnson prevails and, as Berg puts it, “weasels its way out of everything,” the case could usher in a new era in which the government has diminished power to enforce consumer-protection laws, citizens don’t get to make their case before a jury of their peers when those laws fail, and even corporations with long histories of documented harm will get to decide how much, if anything, they owe their victims.
When the Civil War ended, Robert Wood Johnson was a lowly drug clerk in Manhattan with a knack for trading on the medical bona fides of others. In his first business venture, with a prosperous pharmacist named George Seabury, Johnson appropriated the name of Joseph Lister, the British aseptic-surgery pioneer, to sell a line of sterile sutures and gauze. Later, he split from Seabury so that he and two of his brothers could incorporate as Johnson … Johnson. The company plastered the red cross of Clara Barton’s humanitarian organization on its product line and refused to stop, even when Congress tried to prohibit anyone but the Red Cross from using the emblem. (Eventually, the company went so far as to sue the nonprofit for trademark infringement. The judge was not impressed.)
To further burnish its scientific image, Johnson … Johnson gave away millions of medical pamphlets that doubled as advertisements for its products. One pamphlet issued in 1902, titled “Hygiene in Maternity,” marketed at-home birth kits, which included sanitary soap, abdominal binders, umbilical tape, sterile bags, and a recent innovation: baby powder, created by Johnson … Johnson’s first scientific director, Frederick Barnett Kilmer. He had realized that talc could be used to soothe irritations caused by adhesive bandages and diaper rash. Kilmer’s powder went to market in square cannisters that stayed put when lively infants kicked them; for a while, the packaging featured a picture of Robert Wood Johnson’s granddaughter.
Despite accounting for a tiny percentage of Johnson … Johnson’s annual revenue, baby powder provided entrée for the brand into households around the world and was foundational to its family-friendly reputation. According to one company estimate, between 1930 and 1990, baby powder was used on roughly half the children born in the United States. A marketing PowerPoint from 1998 described the baby division as the company’s “#1 asset,” critical to the “deep personal trust” that consumers had for the brand over all. So popular was the baby powder that the company had bought talc mines to bolster and control its supply, selling off some of the talc for use in roofing and paint products and keeping the rest for use on humans. The company’s mines were in Vermont, where many of the talc deposits are thought to contain asbestos. (Geologists working for the state noted the ubiquity of asbestos there as early as 1872.)
Asbestos, which is considered dangerous even in small amounts, is found throughout the world, in building materials and brake pads, and it can also exist, unknown to people, in background levels in their water and soil. It is tricky to detect in talcum products, because the fibres are small and can closely resemble talc. Since the nineteen-forties, Johnson … Johnson has tried to monitor its supply chain, regularly testing talc from its mines and from its other suppliers. Most of the tests it commissioned found no asbestos. However, according to internal documents, dozens of tests have found minerals such as tremolite, chrysotile, and actinolite—which, in certain forms, constitute asbestos—in the company’s talc.
In a statement to The New Yorker, Johnson … Johnson denied that internal testing found “asbestos in talc that was being used by the company.” But company scientists were concerned about the diseases related to asbestos and talc. As one of them, Dr. T. M. Thompson, noted in a 1969 memo to a senior executive, pediatricians had been “expressing concern over the possibility of the adverse effects on the lungs of babies or mothers who might inhale any substantial amounts of our talc formulations.” He warned his colleagues, “It is not inconceivable that we could become involved in litigation in which pulmonary fibrosis or other changes might be rightfully or wrongfully attributed to inhalation of our powder formulations. It might be that someone in the Law Department should be consulted with regard to the defensibility of our position in the event that such a situation could ever arise.”
It wasn’t only pulmonary diseases that were of interest to the company scientists. In 1971, a team of researchers in Wales analyzing the tissue of reproductive-cancer patients found that most of their cervical and ovarian tumors had talc in them. Their study, published in the Journal of Obstetrics and Gynaecology, was the first to suggest a link between talc and ovarian cancer. Within a month, Johnson … Johnson executives sent employees to Cardiff to meet with its authors. According to company minutes of that meeting, the Welsh researchers speculated that the talc might have spread to the reproductive organs via the bloodstream after women inhaled it, or entered their reproductive tracts through their vaginas. Johnson … Johnson got some of the team’s tissue samples to do further testing. Scientists hired by the company not only confirmed the presence of talc in the samples; some of them found asbestos in the tumors as well. (Johnson … Johnson maintains that the samples could have been contaminated.)
In that era, Johnson … Johnson was conducting other research on talc as well. Beginning in 1967, the company funded several experiments on prisoners, mostly Black men at Holmesburg Prison, in Philadelphia. Internal company records detail how the subjects were given blisters with a chemical-burn agent, then had their wounds dusted three times a day with talc. Four years later, other men were injected with talc and two forms of asbestos so that the company could measure the inflammation they developed after exposure. As Allen Hornblum documented in the 1998 book “Acres of Skin,” those talc studies were only some of the experiments Johnson … Johnson carried out on prisoners. Others included paying inmates “five dollars per wound” for testing the absorbency and adhesiveness of the company’s dressings and paying them three dollars each to have shampoo dropped in their eyes regularly for twenty-four hours to help the company perfect the formula for its signature baby shampoo, No More Tears.
Eventually, some in the company began to worry that talc posed a reputational risk. In 2008, the year before Berg filed her lawsuit, its global creative director, Todd True, sent an e-mail to colleagues with the subject line “Best for baby.” He asked, “Have we done any research to determine the potential negative impact to our brand or best for baby strategy by maintaining this ingredient? Have we looked at replacing talc with cornstarch for our base powder as other brands have? What’s the value in maintaining talc under baby aside from cost?” Three days later, he wrote again to suggest that the company “simply replace the talc ingredient” in its baby products. Doing so, he added, “seems like an easy fix and win.”
But Johnson … Johnson did not change the central ingredient in its baby powder. It changed its marketing strategy. In the sixties, as pediatricians began worrying about the suffocation risks that talcum powder posed for babies and major studies were finding asbestos to be carcinogenic even in small doses, Johnson … Johnson was pitching its powder aggressively to adults. One advertisement featured Hammerin’ Harmon Killebrew, the Minnesota Twins Hall of Famer, saying, “Mama taught me it takes more than a towel to really get dry.” The company also introduced a “deodorant body powder,” Shower to Shower, eventually packing it in pink bottles for women and promising “a freshness that stays with you until you wash it away.” In 2007, after the International Agency for Research on Cancer issued its warning about talc powder, Johnson … Johnson had a new focus, according to internal marketing presentations, on “overweight” and “African-American” consumers, then more broadly on “ethnic consumers,” which it pursued through giveaways at churches, beauty parlors, and barbershops in Black and Hispanic neighborhoods. In 2010, the company targeted “curvy Southern women 18-49 skewing African American,” emphasizing that powder helps with body odor and chafing in hot climates. And even after Johnson … Johnson pulled its talc-based powder from U.S. and Canadian markets, in 2020, the company kept selling it elsewhere, including China, Indonesia, and Pakistan, as well as in India, where using the American brand has become a status symbol for women and teen-age girls. Only a few weeks ago did Johnson … Johnson finally announce that it was getting out of the talc business altogether. Not right away, though. Rather than pull its product from shelves, it will simply sell the talc-based powder overseas into next year, until it’s gone.
Johnson … Johnson’s baby powder is classified by the F.D.A. as a cosmetic, a type of product over which the agency has extremely limited authority. In the Federal Food, Drug, and Cosmetics Act, a document of more than eight hundred pages, only two pages address cosmetics, a category that encompasses not just lipstick, mascara, moisturizer, anti-aging serums, and everything else in the makeup aisle but also products that most Americans use every day, including toothpaste, deodorant, and shampoo.
The responsibility for regulating the eighty-five-billion-dollar cosmetics industry falls to the F.D.A.’s Division of Cosmetics, which has just thirty employees and an annual budget of less than ten million dollars: a rounding error in the agency’s six-billion-dollar budget and a twentieth of what it spends regulating food and drugs for pets. The marginal status of cosmetics at the F.D.A. stems in part from the difference between acute and chronic risk: it’s easier to defer regulation for products that cause injury or death only after years of cumulative exposure. But another reason cosmetics are barely regulated is that the industry has successfully fought for more than eighty years to keep Congress from updating the rules that cosmetic companies must abide by. Today, such companies are not legally required to test their products for safety before selling them. They do not have to register with the F.D.A. or provide ingredient statements, and they do not have to produce their safety records for scrutiny or report adverse events, whether rashes or headaches or early puberty or even cancer. If a cosmetic product is life-threatening, the agency cannot recall that product or suspend production; it can only encourage a company to do so. “These are some of our most broken laws,” Scott Faber, who leads government affairs at the Environmental Working Group, a nonprofit research organization, told me. By the E.W.G.’s count, more than eighty countries, from the United Kingdom to Cambodia to Myanmar, have enacted stronger cosmetics regulations than the United States. And whereas some countries’ regulators have banned more than twenty-four hundred cosmetic ingredients, from parabens to formaldehyde, the F.D.A. has banned or restricted fewer than a dozen.
“People think if there’s a problem the government would address it, but cosmetics is probably the best example of weak regulatory action leaving the American people unprotected,” the epidemiologist David Michaels told me. Michaels, the former head of the Occupational Safety and Health Administration and the author of “The Triumph of Doubt: Dark Money and the Science of Deception,” sees talc as a case study in what he calls “working the refs,” whereby an industry successfully resists oversight by interfering with the most basic terms of regulation, from definitions to measurements to methodologies. By way of illustration, he points to a powerful voice in the cosmetics industry: a trade group once called the Cosmetic, Toiletry, and Fragrance Association, and now known as the Personal Care Products Council.
The C.T.F.A. demonstrated its clout in the seventies, when advocacy groups, among them the Center for Science in the Public Interest and the Environmental Defense Fund, began urging the F.D.A. to regulate asbestos in cosmetics. In 1973, the agency proposed a rule that would require talc to be “at least 99.9 percent free of amphibole types of asbestos fibers and at least 99.99 percent free of chrysotile asbestos fibers.” The C.T.F.A. had just hired a young lobbyist, E. Edward Kavanaugh, the father of the Supreme Court Justice Brett Kavanaugh, who would go on to run the organization for twenty years; according to 990 forms that the C.T.F.A. submitted to the I.R.S., he eventually earned an annual salary package of four and a half million dollars.
The trade group organized a “talc task force” to resist the new standard. Among companies that would be affected were, in addition to Johnson … Johnson, Avon, which made Unforgettable Perfumed Talc, and Colgate-Palmolive, which made Cashmere Bouquet—companies that would also go on to face lawsuits alleging that their talcum powder caused cancer.
The C.T.F.A. homed in on the F.D.A.’s proposed testing method, alleging that it “results in both false-positive and false-negative findings” and that it was burdensomely “tedious.” As the C.T.F.A. advocated for a less sensitive testing method, an employee at one of the member companies told colleagues in a memo that they probably wouldn’t have to worry too much about a new F.D.A. limit on asbestos, as regulators “have neither the money nor the manpower to pursue matters so that they will have airtight cases in scientific matters.”
By 1976, the F.D.A. had all but given up regulating asbestos in talc, in part because Johnson … Johnson, which had the lion’s share of the powder market, had encouraged the C.T.F.A. to preëmpt government regulation with self-regulation. The group approved an industry-wide, voluntary standard that cosmetic talc should contain “no detectable fibrous, asbestos minerals.” Then the members chose their own detection method—one that didn’t test for chrysotile asbestos and could only show levels of amphibole asbestos when they were five times higher than what the F.D.A. had originally proposed. The epidemiologist David Egilman, who has studied asbestos and testified as a witness on behalf of plaintiffs in talc lawsuits, compared this to companies placing needles on a bathroom scale and then denying that those needles existed because they didn’t weigh enough to register. (A lawsuit brought against P.C.P.C. alleging negligence and conspiracy was dismissed by a New Jersey judge last year.)
Cosmetic companies have since used the voluntary standard to claim that talc products made after 1976 are “asbestos-free,” a claim repeated far and wide, including on a part of Johnson … Johnson’s Web site dedicated to “The Facts About Talc Safety.” The trade group and its allies also used the voluntary standard to challenge medical literature showing a correlation between talc and cancer. Any incidence of cancer that predated the standard might have come from asbestos in talc, the industry argument goes. And since talc is now thoroughly tested for asbestos, no further regulation is necessary. The only problem is that as recently as 2019 the F.D.A. found asbestos in several talc products on store shelves, including in one bottle of Johnson … Johnson baby powder. (A company statement blames testing error or contamination. The F.D.A. stands by its findings.)
Another C.T.F.A. success came in late 2000, after the National Toxicology Program, which is part of the Department of Health and Human Services, first considered classifying talc as a carcinogen, whether or not it contained asbestiform fibres. As one supplier warned his industry colleagues in a presentation, if the N.T.P. declared talc a carcinogen, “civil litigation would likely skyrocket” and there would be “a virtual immediate loss of our sales.” So the C.T.F.A. worked with some of the same product-defense firms that tobacco companies used in their fight against regulation, including the Weinberg Group and the Center for Regulatory Effectiveness, to create confusion about the definition of talc and to deploy the voluntary asbestos standard against the N.T.P. Although an overwhelming majority of the N.T.P.’s scientists had originally voted for the classification, the vote was changed after the campaign. (Talc was later withdrawn from consideration entirely. The only other instance in which the N.T.P. reviewed and then withdrew something from consideration involved a study of the carcinogenic effects of night shift work and light at night.) “We (the talc industry) dodged a bullet in December based entirely on the confusion over the definition issue,” one of Johnson … Johnson’s talc suppliers confided in a private e-mail. But a colleague of his cautioned that there was work left to do in fighting off further regulation: “Time to come up with more confusion!”
Shortly afterward, the C.T.F.A. brought on a new executive: John Bailey, who was hired after he’d served ten years as the head of the F.D.A. office overseeing the Division of Cosmetics. Bailey has since made more than two hundred dollars per hour testifying as an expert witness for Johnson … Johnson and other companies in talc litigation.
There are two levers to pull when it comes to consumer protection: one before the harm is done, and one after. In June of 2013, nearly four years after Deane Berg filed her lawsuit against Johnson … Johnson, she drove five hours to Rapid City to meet with company lawyers, who, she told me, offered her a settlement of eight hundred thousand dollars. Would the company also add a warning label to its baby powder? Berg asked. No, said the lawyers, who then increased the proposed settlement by another half million dollars. The offer was contingent on her never saying that baby powder had caused her cancer. (The company denies this version of events.)
She left the meeting with the lawyers and went for a walk with her second husband, who had come with her for moral support. “You know I didn’t go into this to make a buck,” she told him. “I wanted to get this out there for the public, so women don’t suffer like I did.” When she went back inside, she announced her decision: “If you’re not going to put a warning on the powder and you’re not going to tell women, I’ll see you in court.”
That fall, Berg’s case went before a jury in Sioux Falls. Three experts appeared on her behalf, including Daniel Cramer, an epidemiologist at the Dana-Farber/Harvard Cancer Center, who had published one of the first studies showing an increased risk of ovarian cancer from using talcum powder. Johnson … Johnson had five experts who disputed the link between talc and cancer and suggested that the talc found in Berg’s ovary was from contamination of the sample at the hospital where she was treated.
The trial lasted two weeks. Berg’s lawyers warned her that South Dakota juries often sided with defendants in product-liability cases, but, whatever the outcome, her case was already significant. Even though the company had challenged every one of her expert witnesses, they had all been accepted by the court, clearing a crucial judicial hurdle known as the Daubert standard.
During the two days that the jury spent deliberating, a blizzard descended on South Dakota. Berg, sitting at the plaintiff’s table, was struck by how silent the courtroom was when the jurors returned with a verdict: Johnson … Johnson was guilty of negligence. One of the company’s lawyers slammed a notebook shut. Then the clerk turned to the matter of compensatory and punitive damages—how much Berg would receive for her medical expenses and how much Johnson … Johnson would have to pay her for its failure to warn consumers of the risk of cancer associated with its product. The amount, in both categories, was the same: nothing.
For a jury to find a company guilty of negligence yet award no damages is rare, and to a different plaintiff that outcome might have been devastating. But Berg, who had turned down more than a million dollars in order to warn other women, found peace in the knowledge that, whatever else had happened, she had made it easier for future plaintiffs to fare better. Which they did, until they didn’t. Once juries started turning against Johnson … Johnson, Johnson … Johnson, looking for a better way out of mass litigation, turned against juries.
It wasn’t that Johnson … Johnson always lost in court; on the contrary, the company ultimately prevailed in most of the talc cases that went to trial. But, when it lost, it lost big. In 2016, juries in Missouri awarded seventy-two million dollars to the family of a woman who died of ovarian cancer, then fifty-five million and seventy million to two women living with the disease. In 2020, the company settled more than a thousand cases for around a hundred million dollars total, and, in a separate suit, twenty-two women were together awarded more than four billion dollars in damages. On appeal, some of the awards were reduced or overturned. But last year the company, in its Securities and Exchange Commission filing, disclosed that it had set aside $3.9 billion primarily for talc-related litigation.
By then, the bulk of the talc lawsuits had been organized into what is known as multi-district litigation. M.D.L.s can involve thousands of plaintiffs and hundreds of lawyers, mostly pursuing damages from large companies accused of producing defective drugs or faulty products or compromising consumer data. In theory, M.D.L.s are economical, efficient, and more equitable than other mass torts. By combining pretrial work like depositions and discovery, they streamline litigation, unclogging the federal courts and saving both sides time and fees. They can also produce more consistent rulings than stand-alone cases, thereby avoiding lottery-like outcomes in which some plaintiffs receive huge verdicts and others, like Deane Berg, get nothing.
In reality, however, almost everyone involved in M.D.L.s hates them. Defendants complain that plaintiffs are poorly vetted, and an estimated thirty to forty per cent of them are later found to be ineligible or even fraudulent. (Johnson … Johnson estimates that plaintiff firms have collectively spent as much as four and a half million dollars per month on advertising to recruit women with ovarian cancer as clients.) Plaintiffs, meanwhile, dislike the impersonal nature of consolidated representation and the high fees involved, which include lawyers’ billable hours, meals, and travel (sometimes on private flights), and can rise to more than forty per cent of settlements. And plaintiffs and defendants alike complain about the sluggishness of the enterprise. M.D.L.s can take years to reach a conclusion, during which time the opposing sides turn into nation-states of sorts, each with its own G.D.P. and factions, to say nothing of its own press secretaries, pundits, dignitaries, emissaries, and even mercenaries, all chasing after a resolution that is technically if preposterously known as “global peace.”
M.D.L. No. 2738 was formed on October 4, 2016, and assigned to the District of New Jersey, where Johnson … Johnson and many other pharmaceutical companies are headquartered. The litigation, which ultimately included more than thirty-eight thousand women with ovarian cancer, was assigned to Judge Freda Wolfson. She spent half a decade sorting through all the pretrial work and selecting what are called the bellwethers: a small sample of plaintiffs whose suits would go to trial, each verdict helping the parties gauge the likely settlement figure, and thereby moving the M.D.L. closer to a conclusion.
Alexandra Lahav, who teaches complex litigation at Cornell Law School, observes that, of the more than a hundred medical-related product-liability M.D.L.s since 2000, only four exclusively affected men. Twenty-two exclusively affected women, including the Johnson … Johnson case and others involving contraceptives such as Yaz and medical devices such as transvaginal mesh. In addition, the women’s cases over all involved far more plaintiffs per case than those affecting men. Lahav believes that these disparities reflect biases in the regulatory apparatus that tolerate greater risks for women than for men. “With women, especially women’s reproductive health, history demonstrates again and again that these products aren’t tested well, the side effects aren’t well known, and there appear to be more adverse events,” Lahav told me. “There’s this sense that it’s O.K. to experiment on women’s bodies in real time.” When such experiments go wrong, they cost companies, but not as much as they might: according to Lahav, lawyers on both sides report that women’s cases are less profitable than cases involving men.
Last summer, Johnson … Johnson reportedly offered somewhere between four and five billion dollars to settle the cases in M.D.L. No. 2738. That deal fell apart, but, in any case, it would not have ended all the litigation the company was facing. Not everyone suing Johnson … Johnson is part of that M.D.L., and not all of the plaintiffs have ovarian cancer. Some are suffering from mesothelioma, a rare and lethal form of cancer, associated with asbestos exposure, that eats away at the thin layer of tissue surrounding the body’s internal organs and often results in death within a year of diagnosis. One of those plaintiffs is Patricia Cook, a fifty-eight-year-old personal trainer and mother of two sons from Virginia Beach. She never lived or worked anywhere near asbestos, but her mother had been an employee of Johnson … Johnson and encouraged her daughters to use the company’s products. Cook began using baby powder when she was twelve—applying it, like Deane Berg, after every shower, and later, once she had children, after every diaper change. In 2020, when those children were grown, Cook found a lump on the lower right side of her abdomen. She went in for an ultrasound, and the technician found a nodule behind her cervix. Given the choice between a biopsy and a hysterectomy, she chose the latter, but during the procedure the surgeon found that her reproductive system was riddled with tumors and decided to biopsy as many as he could. “I got the results on MyChart,” she told me: malignant peritoneal mesothelioma.
Historically, mesothelioma has been associated with men who worked in mining or construction, although it sometimes affected their wives and daughters as well. Now, though, according to Michael Becich, a professor at the University of Pittsburgh School of Medicine who runs the National Mesothelioma Virtual Tissue Bank, “we’re seeing a much younger population and also more women.” The Centers for Disease Control and Prevention recently reported that in the past twenty years there has been a twenty-five-per-cent increase in the number of women who died of the disease: four hundred and eighty-nine in 1999 to six hundred and fourteen in 2020, with the highest number of deaths occurring among homemakers. As early as 1997, lawyers working on behalf of Johnson … Johnson to fight a Texas woman’s mesothelioma lawsuit against the company noted in an internal memo that “rare cases of mesothelioma among women with no other identifiable exposure might be related to exposure to cosmetic talc.”
“I was just in shock,” Cook said of her diagnosis. “I spent my life eating healthy and exercising.” She had just wed her second husband, and, she told me, “I hadn’t married him to be my caretaker. We had plans for a long life.” COVID restrictions kept him from being with her in the hospital, where she spent long stretches alone, having her uterus, omentum, gallbladder, appendix, spleen, part of her peritoneum, part of her diaphragm, and some of her intestines removed, then undergoing hyperthermic intraperitoneal chemotherapy, an intensive treatment in which drugs are poured directly into the abdomen.
Partly to cover medical bills and partly hoping to protect other women, Cook filed a lawsuit against Johnson … Johnson. Her lawyers said that her trial would likely begin in May, 2022. But, as her lawyers were preparing their case, Cook learned that it would not move forward. Nor would any of the other cases in state courts or the tens of thousands of cases that were part of the federal M.D.L. Like planes suddenly grounded at every airport in the country, those cases were all stayed when Johnson … Johnson filed for bankruptcy.
Johnson … Johnson’s lawyers would have it be known that their company—officially, Johnson … Johnson Consumer Inc.—never filed for bankruptcy. The company that did so was called LTL Management L.L.C. LTL, which stands for Legacy Talc Litigation, was created in Texas on October 11, 2021, and merged on the following day with—let’s call it Old J. … J. That same day, LTL Management was converted to a limited-liability company based in North Carolina, and two days after that, on October 14th, it filed for Chapter 11 protection in the U.S. Bankruptcy Court in Charlotte.
The L.L.C. that Johnson … Johnson created never had an office or any employees of its own in Texas or North Carolina. It never manufactured or sold talcum powder; for that matter, it never really conducted any business at all before going belly up. Still, in between its formation in one business-friendly jurisdiction and its bankruptcy in another, the new company took on all of Old J. … J.’s talc liabilities. It was suddenly responsible for some forty thousand talc cases, while a new company, also called Johnson … Johnson Consumer Inc., emerged with all of Old J. … J.’s assets—those tens of billions of dollars—and none of its talc liabilities, leaving it free to carry on with its operations.
The bankruptcy route taken by Johnson … Johnson, formally called a divisional merger, is better known as the Texas two-step. Greg Gordon, a partner at Jones Day, the law firm that has represented every company that has attempted the move so far, has observed that although some portray it as “the greatest innovation in the history of bankruptcy,” the two-step is more than thirty years old. It came into being in 1989, when the Texas legislature amended its Business Corporation Act, permitting a single corporation to divide into two or more entities, including when facing extremely expensive litigation.
No corporation was daring enough to try the two-step until 2017, when Koch Industries used it to shield a subsidiary, Georgia-Pacific, from asbestos claims related to its paper and building products. The parent company formed a Texas corporation called, improbably, Bestwall, which declared bankruptcy in North Carolina three months later, spinning off all the asbestos-related liabilities while allowing Georgia-Pacific to continue making billions of dollars in profits through its other products, among them Brawny paper towels, Quilted Northern toilet paper, and Dixie cups.
Johnson … Johnson is the fourth company to attempt the two-step and, thus far, the most brazen, having collapsed the interval between formation and bankruptcy from three months to seventy-two hours. According to a recent Reuters investigation, the two-step plan at Johnson … Johnson was known internally as Project Plato. As one of the lawyers involved wrote in a memo, “It is critical that any activities related to Project Plato, including the mere fact the project exists, be kept in strict confidence.”
Project Plato has succeeded in pausing Patricia Cook’s lawsuit, and the company will be protected from her case and all others in perpetuity if it is granted a non-debtor release, which extends the shield of bankruptcy to non-bankrupt parties. Non-debtor releases were a lightning rod in the Purdue Pharma bankruptcy, when members of the Sackler family sought to be spared future liability by contributing to the company’s opioid settlement fund. These releases were also part of the bankruptcies that followed sexual-abuse cases against USA Gymnastics, the Boy Scouts of America, and Catholic dioceses around the country. In all these cases, the bankruptcy of one entity was used by others—family members, training facilities, insurance companies, individual parishes—to try to minimize financial liability.
In the Texas two-step, such releases are particularly audacious, since they shield not only ancillary parties but also the party with the greatest liability, to say nothing of the greatest assets—in this case, Johnson … Johnson, which is seeking protection from both current suits and future talc litigation. (The company disputes this characterization, and said in a statement, “LTL’s Chapter 11 filing is intended to resolve all claims related to cosmetic talc in a manner that is equitable to all parties.”) Lindsey Simon, a professor at the University of Georgia School of Law, calls such corporate actors “bankruptcy grifters,” since they enjoy the benefits of bankruptcy but don’t suffer any of its burdens, such as transparency requirements, and they do so without, in any meaningful sense, going bankrupt. “They want the good parts of bankruptcy,” she told me, “without any of the bad parts.”
Michael Kaplan, a bankruptcy judge in New Jersey, inherited Johnson … Johnson’s Chapter 11 filing when, in the first sign of how unusual the case was, a bankruptcy judge in the Western District of North Carolina refused to hear it. In February, in response to plaintiffs’ objections, Kaplan ruled that there was “no impropriety” in the use of the Texas two-step. Allowing the bankruptcy to proceed, he appointed Kenneth Feinberg, who administered the September 11th Victim Compensation Fund and the BP Deepwater Horizon Disaster Victim Compensation Fund, to estimate the value of the talc litigation before the end of the year.
That estimate might not matter, though. Critics say that the point of Project Plato was to try to create an entity with limited assets: specifically, two billion dollars so far to settle current and future claims. That figure is less than half of what Johnson … Johnson reportedly offered the ovarian-cancer plaintiffs in the M.D.L. just last summer, to say nothing of what they could owe all the mesothelioma plaintiffs. And, needless to say, it is also far less than the company’s assets. Johnson … Johnson has already spent nearly a billion dollars—half the value of the settlement fund—on its own legal defense. The company’s bankrupt subsidiary, meanwhile, has its own legal costs, including fees paid to Neal Katyal, the former Solicitor General and a current partner at the law firm Hogan Lovells, who charged $2,465 per hour.
“Shameful,” “indefensible,” “complicated trickery that ordinary people don’t have access to”: thus have members of the Senate Judiciary Committee decried Johnson … Johnson’s bankruptcy maneuver. Earlier this year, the committee held a bipartisan hearing on the two-step loophole and whether it could become corporate America’s default way of avoiding consumer liability, letting companies with problem products squeeze through it with billions of dollars in assets intact. Among those who testified at the hearing was a single mother named Kimberly Naranjo.
Naranjo, who had been abused as a young girl, moved in and out of the foster-care system and struggled with addiction until an aunt helped her turn her life around. In 2021, fifteen years sober, she had bought her first house and was starting a new job as an addiction counsellor at the Salt Lake County Sheriff’s Office when she felt a pain in her side. A week later, she learned that the pain was caused by mesothelioma. Naranjo had no known exposure to asbestos, but at twenty, when she had her first child and was trying to be a better mother than her own had been, she began using Johnson … Johnson’s powder at every diaper change. She did the same for six more children, and all along she used baby powder in her underwear and in her shoes, to combat sweat and body odor in the Utah heat.
Her disease forced her to leave her job, and, unable to pay her mortgage, she soon lost the house. When she learned that she could file a lawsuit, she thought that a settlement might help with her medical expenses or provide for her children after her death. Then came the bankruptcy, which stalled cases like hers and kept other women from even filing.
“I am so grateful that you have listened to me,” Naranjo said to those who attended the congressional hearing. “I wish that Johnson … Johnson would listen, too, but they took away that right from me and thousands of other people who have their own stories, families, and lives that also deserve a right to be heard by a jury.”
Judge Kaplan’s ruling allowing the Johnson … Johnson bankruptcy to proceed has been appealed by the Official Committee of Talc Claimants, which was organized by the U.S. Department of Justice to represent the mesothelioma and ovarian-cancer victims in the Chapter 11 case. Lawyers for those plaintiffs called the bankruptcy a “shell game” designed to “slough off [the company’s] responsibility,” and the U.S. Court of Appeals for the Third Circuit is holding an expedited hearing this month to consider these plaintiffs’ challenge.
Elizabeth Chamblee Burch, a professor at the University of Georgia School of Law who studies mass litigation, told me that corporate America is watching the Third Circuit closely. “We’re clearly seeing a strategy here to get the closure every company wants: ending all the state and federal lawsuits at once, reassuring their shareholders everything’s fine,” she said. Burch noted that many companies are exploring strategic bankruptcy as a cheaper, faster way out of mass torts. 3M recently tried to move tens of thousands of lawsuits filed by veterans over its allegedly defective Combat Arms Earplugs into bankruptcy after three years of litigating the cases in an M.D.L. Bayer could decide that bankruptcy court is a better way out of the long-tail liability it faces from its product Roundup, which contains glyphosate, a chemical that plaintiffs claim has been linked to non-Hodgkin’s lymphoma.
Plaintiffs are watching the Third Circuit closely as well. In the summer of 2021, the National Council of Negro Women filed a lawsuit against Johnson … Johnson for false and predatory advertising to communities of color. Because of the two-step, that suit is stayed. And, in July, Johnson … Johnson took the two-step one step further by asking the bankruptcy court for an injunction against the states of Mississippi and New Mexico. Some forty other states are negotiating with Johnson … Johnson’s bankrupt subsidiary to settle their own consumer-protection cases against the company, but those two states were planning to go to trial. If Kaplan stays their cases as well, “principles of federalism [could] vanish,” they allege in their opposition to the injunction, “while a multi-billion-dollar entity contorts the bankruptcy code to shield itself from the states’ constitutional and statutory exercise of their police and regulatory powers.”
If companies can use the two-step to protect themselves from any and all consumer liability, even from states themselves, what’s left to hold them accountable? The Department of Justice has been investigating Johnson … Johnson since 2019, but little is known about the status or the aims of that investigation. The D.O.J. may or may not bring criminal charges. The Third Circuit may or may not toss the bankruptcy case. Congress may or may not curtail the Texas two-step or empower the F.D.A. to regulate cosmetics more effectively. Anything is possible.
But, for now, the only people who have ever held Johnson … Johnson responsible for its actions are those who have served on juries. Deane Berg went to court rather than accept a settlement in the belief that, upon hearing her story, a jury would agree that Johnson … Johnson should have warned consumers about the potential dangers of talc.
Patricia Cook may never get that chance. She knows how deadly mesothelioma is but could not bear to ask her doctors for a prognosis, choosing instead to appreciate every additional day. Kimberly Naranjo, though, is already in hospice care and unlikely to reach what she had taken to calling her “expiration date,” a month before her fiftieth birthday. She knows she won’t live long enough to see justice done. She isn’t even sure what justice would look like.
Yet all of us know what justice doesn’t look like. Johnson … Johnson’s most recent quarterly report shows twenty-four billion dollars in sales, and, in the eleven months since it filed for bankruptcy, an average of one woman a day has died waiting to find out if her case against the company would ever be heard.
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Rep. George Santos outside his office on Capitol Hill. (photo: Francis Chung/POLITICO/AP)
Despite the hue and cry of Democrats, perhaps no one wants Santos out of office more than the Republicans of Nassau County.
Yet here we are.
Anne Donnelly officially became the county’s top prosecutor just over a year ago, propelled by a campaign focused on state bail laws and funded almost single-handedly by the county Republican Party. She is a 32-year veteran of the DA’s office who has conducted wide-ranging investigations against gangs and white-collar criminals. And last month, she pledged in strikingly strong terms to train her expertise on newly elected Rep. George Santos (R-N.Y.).
That pronouncement launched her from relative obscurity into national headlines. And going forward, her prosecutorial experience, the desire of fellow Republicans to rid themselves of Santos and the unique powers of the district attorney’s office put her in a prime position to pounce on the fact-challenged lawmaker.
“This fell into her lap. It’s in her backyard. I think she is more than capable of handling it, and she has the will of the people to do something,” said Vito Palmieri, a Long Island attorney who worked in the Nassau County DA’s office in the 1990s. “That the party wants him gone and she is a Republican doing her job — let’s put it this way — I don’t think that hurts her at all.”
Despite the hue and cry of Democrats, perhaps no one wants Santos out of office more than the Republicans of Nassau County, a leafy suburb abutting New York City that is home to 1.4 million people, many of whom commute into Manhattan.
“He needs help,” Nassau County Executive Bruce Blakeman said about Santos at a recent press conference. “This is not a normal person.”
Blakeman was speaking at an extraordinary event convened by the Nassau County Republican Committee earlier this month, where more than a dozen GOP officials took turns excoriating the freshman lawmaker over lies about everything from his family history (not Jewish) to his education (he did not attend Baruch College, let alone play on its volleyball team).
They had ample reason to fret. Fresh off huge midterm gains there and elsewhere on Long Island, the party will be heading into a tough election season in 2024 with President Joe Biden atop the ticket. With sky-high unfavorability ratings and zero support from fellow party members, Santos will have a tough time clinging to his seat — as evidenced by Democrats and Republicans already drawing up short lists of who might replace him — and could hurt fellow GOP candidates by association.
Rightward shift on Long Island
The midterm red wave that washed over New York City suburbs began building in 2021.
In May that year, the sitting Nassau County DA, a Democrat, was appointed to a judgeship on the state’s highest court, triggering a special election for her successor. As each party scrambled for a candidate, John Wighaus, president of the Nassau County Detectives’ Association, later recalled to Newsday how he introduced Donnelly to the head of the Nassau County GOP.
The then 56-year-old had close to zero political experience. Donnelly had never made a political contribution before 2021, though state campaign finance records show her husband has been a periodic donor to Republican causes.
Her status as a political neophyte was reflected in her campaign ads, where she never addressed the camera. Instead, third parties appeared on-screen to attack her opponent, Democratic state Sen. Todd Kaminsky. Those surrogates included the detectives’ association leader and victims of violent crime, who starred in several spots leading up to the November election.
Donnelly, whose office declined to make her available for an interview, had other professional advantages. She spent her career in the DA’s office working under both Republicans and Democrats, first joining as an assistant district attorney in the District Court Bureau and serving most recently as deputy chief of the Organized Crime and Rackets Bureau.
In the end, few of those details seemed to matter as the race became a proxy for recently changed bail laws in New York state that have drawn Republican criticism and opened a rift within the Democratic Party.
Her run was fueled almost entirely by the local party apparatus. Out of the $1.3 million she raised, nearly $1 million came from the Nassau County GOP, according to state campaign finance records. That cash infusion, along with the relentless focus on bail, propelled her to a resounding 20-point victory over Kaminsky.
And now, as Republicans are hoping to be rid of Santos, she has indicated an eagerness to investigate.
“The numerous fabrications and inconsistencies associated with Congressman-Elect Santos are nothing short of stunning,” she said in a statement in late December, weeks before the county party would reduce their relationship with Santos to cinders. “The residents of Nassau County and other parts of the third district must have an honest and accountable representative in Congress. No one is above the law and if a crime was committed in this county, we will prosecute it.”
That led Joseph Murray, Santos’ attorney, to question whether Donnelly had come under pressure from the Nassau County GOP or protesters calling for an inquiry. Murray said he had supported Donnelly’s run for office in 2021, heartened by her apolitical history, but was disappointed to see the Dec. 28 statement coming from such a seasoned litigator.
“There’s no way a prosecutor of 32 years is going to telegraph an investigation like that to the whole world,” Murray said in an interview. “From a prosecutor’s perspective — not as [Santos’] lawyer — why would you do that?”
Murary declined to discuss any of the allegations against Santos.
The road ahead
Donnelly’s forceful statement stood in stark contrast to federal prosecutors, who declined to comment on a CBS News story that broke news of their probe, and the New York state attorney general, who said she was looking into allegations against Santos.
While each of those law enforcment offices has its own jurisdiction, there appear to be a few legal avenues for Donnelly to explore.
“They are a very solid office, and they are able to do complex cases,” Howard Master, a managing director at investigation firm Nardello … Co. who has worked for both state and federal prosecutors, said of the Nassau DA. “Essentially the difference is: Their jurisdiction includes state crimes which the federal government cannot prosecute.”
Charges related to lying on formal documents or falsifying business records, for example, might serve as a guidepost if Donnelly were to look at Santos’ involvement with an investment fund currently in the crosshairs of the Securities and Exchange Commission. While Santos worked for the company, Harbor City Capital, he was not named as a defendant in a civil lawsuit filed by the SEC.
District attorneys can often be quicker when it comes to mounting investigations compared to their federal counterparts. But in probes involving major figures like elected officials, state prosecutors often take their time to ensure cases are airtight. And it is likely Donnelly’s office is coordinating with the feds, who enjoy several advantages of their own when it comes to gathering testimony and evidence.
“It’s common for state and federal prosecutors who are looking at the same subject to work collaboratively with each other to avoid duplication of efforts in obtaining information from witnesses and other sources of information,” Master said, “and to ensure that the appropriate charges are brought in whichever jurisdiction is best suited to hear [them].”
While Donnelly pledged to uncover any breach of state law, Santos’ fabrications provide much more grist for the feds to bite into: He filed a financial disclosure with the House and submitted campaign finance records to the Federal Election Commission, both actions that fall squarely within the purview of prosecutors in the Eastern District of New York.
Santos’ campaign finance disclosures with the FEC, for example, contain dozens of expenses that fall just cents short of a threshold that would have required him to preserve documentation of those purchases. And he provided dramatically different information on financial disclosure forms filed during his first run for Congress and his successful campaign last year.
“There are blinking red lights related to the comparison between his financial disclosure in 2020 and the entire campaign finance process, including his financial disclosure in 2022,” Rep. Dan Goldman (D-N.Y.), who has penned both an ethics complaint against Santos and a bill mandating more disclosure from candidates alongside his colleague Rep. Ritchie Torres, said in an interview.
Thus far, no one has released information even hinting an indictment against Santos is imminent. And, according to Goldman — a former federal prosecutor who has been tapped for the House Committee on Oversight and Accountability — the various probes could ultimately lead somewhere unexpected.
“Investigations are rarely ends-oriented,” he said. “It’s much more often you are investigating one thing, you dig into bank records and then start to see a totally different picture.”
An attorney and a spokesperson for Santos did not return messages.
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Trader Joe's independent union, Trade Joe's United, faced its first loss at the company at a location in Brooklyn. (photo: Gabby Jones/NYT)
Employers are using heavy-handed tactics to prevent workers from organizing, and US labor union density is falling as a result
Connor Hovey, a worker and organizer at the Louisville store, said unionizing efforts began as other high-profile union organizing efforts such as at Louisville’s Heine Brothers, a local coffee shop chain, were taking off. Like those workers, the Trader Joe’s organizers sought to address issues stemming from inadequate corporate policies and safety precautions, and how workers have been treated during the Covid-19 pandemic.
But during the organizing drive Hovey claimed opposition from Trader Joe’s management has been intense, resulting in workers filing several unfair labor practice charges with the National Labor Relations Board (NLRB). “The company has made it very clear that they will do whatever they can to stop this effort in its tracks,” said Hovey.
This sort of intense pushback against unionization is becoming the norm in the US – and it is having an impact. The intense opposition from many major US employers to workers who are trying to unionize is a major factor in the recent decline in labor union density in the US, with the US having among the lowest union densities compared with other industrialized countries.
The decline comes even as the US labor movement experienced a surge in popular support in 2022, with a spike in union election filings, growing support for unions in polls and more work stoppages.
According to a 2022 poll conducted by Gallup, support for labor unions reached its highest point since 1965, with 71% of Americans approving of unions. Petitions filed for union elections increased by 53% in fiscal year 2022, resulting in the largest number filed since fiscal year 2016.
But despite this growth, US labor union density declined in 2022, with the share of workers represented by a labor union decreasing from 11.6% in 2021 to 11.3% in 2022, and union membership density decreasing from 10.3% in 2021 to 10.1% in 2022. The number of workers represented by unions increased by 200,000, but this was offset by a 5.3% increase in the total number of workers in the US workforce.
The number of unfair labor practice charges filed with NLRB field offices increased by 23% in fiscal year 2022, the largest single-year percentage increase in decades, revealing how widespread employer opposition is to unionization efforts.
US employers spend an estimated $340m annually on hiring union avoidance consultants to oppose unionization efforts and employers are charged with violating federal labor law in 41.5% of all union elections, according to a 2019 analysis by the Economic Policy Institute.
Labor experts have highlighted the disparity between support for labor unions and decreasing union density as revealing a need for public policy reforms to protect workers’ rights to organize and enact meaningful penalties on employers for violating labor laws. They also say the NLRB needs more funding as workers face long delays for charges to be reviewed and adjudicated.
Workers have won union elections for the first time at many US locations of high-profile corporations, including Amazon, Apple, Trader Joe’s, REI, Chipotle and more than 270 Starbucks stores that have unionized since December 2021.
At Starbucks, Workers United has accused the company of firing dozens of workers and shutting down stores in retaliation for union organizing, and the NLRB has issued more than 60 official complaints involving more than 1,200 labor law violations, according to the union.
Workers have organized numerous strikes at stores around the US to protest alleged retaliation against workers and delays in bargaining a first union contract. Starbucks has disputed all allegations of retaliation and disputed all NLRB complaints and rulings against the company so far.
Sarah Pappin, a shift supervisor at a Starbucks in Seattle for nine years, claimed she had experienced retaliation for being heavily involved in union organizing efforts and pushing for bargaining a first union contract.
Pappin said her store manager left at the end of 2021 to go to Buffalo, New York, as numerous store managers from around the US descended on that area to oppose unionization efforts at stores there. Pappin explained that shortly thereafter, she began getting in arguments over unionization with her store manager, who wrote her up for policy infractions such as swearing in the backroom that weren’t enforced with other workers or managers.
She also received a final written warning for being late and explained the fear and anxiety that treatment has created for her.
“I definitely felt like they were trying to send a message of ‘if you act like a problem, we will figure out how to fire you,’” said Pappin. “To clock into your work every single day and not know if that’s gonna be the last day you work there, that’s just really stressful and it’s difficult as somebody who’s really, really worked really hard for this company for years.”
Unionizing efforts at other US household corporate names have also been fiercely contested.
Two Apple stores, one in Oklahoma City, Oklahoma, with the Communications Workers of America, and the other in Towson, Maryland, with IAM CORE, won union elections in 2022, the first two stores at Apple to ever do so. Apple is currently facing intense scrutiny from the NLRB and investors over how the company responded to these union campaigns and others in Atlanta, New York City and Columbus, Ohio.
In Columbus, Ohio, workers are still pushing to organize a union amid allegations in a complaint issued by the NLRB that Apple created a pseudo union to stop unionization efforts at the store.
An Apple store worker in Columbus explained they started getting involved in union organizing at the store in response to degrading working conditions in recent years. They claimed the store has forced workers into captive audience meetings, which included corporate videos in which company executives try to dissuade workers from unionizing.
“We’ve seen videos from our corporate bigwigs who have kind of slyly tried to say, ‘Oh, we’re here for you, we don’t want to create another bridge in this relationship because we already do such a good job of being there for you,’ and a lot of it is a facade to keep up a good image,” the worker said.
Apple recently reached a deal with investors to audit the company’s labor practices in response to how the company has responded to union organizing in line with the company’s human rights policy.
“I’m incredibly hopeful that this will be done in an unbiased manner and Apple will kind of change direction instead of actively trying to dissuade organizing efforts and take a more active approach in ensuring a healthy relationship with any stores that choose to organize,” said Michael Forsythe, an employee and organizer at the Apple store in Oklahoma City that won its union election in October 2022.
Forsythe explained he had not surprised by the NLRB complaints filed against Apple for its behavior during union organizing campaigns, but he was hopeful as his store is now preparing to begin bargaining for a first union contract with Apple.
“I think organizing my store is probably the hardest thing I’ve ever done. It was a lot of work – six months of talking to people, campaigning, things like that, and then six weeks of some of the most intense working conditions as far as the fear that people end up having because people are just very anti-change in a lot of cases, and it can be scary,” said Forsythe.
He added: “But at the end of the day, when you’re gaining better working conditions for yourself, the ability to take better care of yourself and things like that, it’s worth six months of a struggle in order to lay a foundation for yourself and your co-workers so everybody else can have a much better experience.”
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For years, Humira dominated the market for treating rheumatoid arthritis and other autoimmune disorders. (photo: Aram Boghosian/STAT)
"It's about time!" said Sameer Awsare with a laugh and a smile. Awsare, associate executive director for the Permanente Medical Group, advises national insurer Kaiser Permanente on its prescription drug policies. Other groups representing insurers, patients or employers are also eager for these biosimilars to usher in more competition — in hopes that will enable them to slash their spending on the popular treatment.
But among industry watchers, the prevailing sentiment is uncertainty over whether competition alone will bring the price down.
"I am pretty anxious," said Marta Wosińska, an economist and fellow at the Brookings Institution.
Humira losing its monopoly creates the biggest test the fledgling U.S. biosimilars market has ever faced. It's a market critical to containing drug costs in the U.S., which relies primarily on competition rather than regulation to rein in spending.
If these challengers to Humira fail to pass this test, some will see it as a sign something about this market is fundamentally broken.
A golden opportunity for a beleaguered biosimilars market
Biosimilars are highly similar versions of a rapidly growing class of drugs called biologics, a broad range of treatments or preventatives that include immunotherapies, insulins and certain vaccines made from living cells.
While biologics are driving many of medicine's most exciting new advances — shrinking tumors, controlling diabetes, even delaying dementia — they are also consuming more of our money. Biologics account for nearly half of U.S. drug spending despite comprising less than 3% of prescriptions.
Since debuting in the U.S. in 2015, biosimilars have struggled to match the market-devouring, price-plummeting impact of generic drugs, which save U.S. patients and insurers $300 billion a year.
How biosimilars are different from generics
Unlike generics, biosimilars face a unique set of regulatory, manufacturing and business challenges. Conventional drugs can be replicated like a recipe in a cookbook using chemical processes. In contrast, because biologic drugs are grown in living cells, they are harder to mimic, making biosimilars more difficult and expensive to manufacture. Experts debate whether those unique challenges have doomed this market or if biosimilars simply need more time to establish themselves.
Humira offers by far the best opportunity this beleaguered market has had to succeed.
"All of the pieces seem to be there," Wosińska said. "Tons of money on the table [and] eight companies ready to jump in."
If biosimilars come up short again, Wosińska and others worry about the chilling effect that could have on future biosimilar investments, leading to less competition and a future where people pay higher drug prices, steeper insurance premiums and bigger tax bills for programs like Medicare.
A fierce fight for market share
In order to pass this test — and demonstrate biosimilars can have a strong, healthy future in the U.S. — Humira's challengers need to deliver big savings and devour market share.
Experts — and even Humira's own manufacturer, AbbVie — are confident this new competition will soon cut spending on the drug nearly in half. Those savings would mostly benefit insurers and their middlemen as well as employers, who pick up the bulk of drug costs for many Americans. According to original calculations done for Tradeoffs by the Health Care Cost Institute, employers spent more than $15 billion in 2020 on Humira. How much of the cost-savings will trickle down to patients, who can spend more than $70,000 a year on this drug, is less clear.
The much harder part of this test to pass will be snatching significant market share away from Humira manufacturer AbbVie. With its 20-year head start, the drugmaker has spent billions of dollars erecting barriers to "slow competitors down and protect as much of the market as possible," according to Robin Feldman, professor at University of California Law, San Francisco.
Company tactics have included tweaking Humira's formula to give the appearance that biosimilar competitors are less similar; AbbVie has also added two new drugs of its own that target similar patient populations and add to the company's market share. AbbVie recently projected the pair of drugs —– Rinvoq and Skyrizi —– will exceed Humira's record $20 billion in annual sales by 2027.
AbbVie declined multiple requests for comment but in addressing the forthcoming biosimilar competition on a February 2020 earnings call, chief executive Richard Gonzalez said, "Our goal is to maintain as much share as we can in as profitable of a way as we can."
AbbVie's actions are just one hurdle biosimilars face.
"Everybody is feeding at the trough," Feldman said.
The complex drug purchasing system in the U.S. — rife with confidential rebates and convoluted fees — creates perverse financial incentives.
For example, most insurers rely on middlemen to negotiate deals with drugmakers that in turn dictate which drugs get covered and what patients pay at the pharmacy counter. But those middlemen have their own profit motives and have been known to give favorable coverage to a more expensive drug if its manufacturer offers them a lucrative deal.
These contracts are confidential, but so far, in the case of Humira, two of the country's three largest insurance middlemen have said they plan to charge patients the same out of pocket costs for Humira as biosimilar alternatives.
"The patient won't pay any less if they switch to the biosimilar," Feldman said. "Why would you switch from [a brand] you already know to [one] that you don't know" if you are paying the same?
Patients lacking any financial incentive to switch makes competing that much harder for biosimilars, which are vying in many cases for patients who have relied on Humira for years — and their doctors. In a survey of physicians conducted by the research group NORC at the University of Chicago, only 31% said they were very likely to switch a patient doing well on any biologic over to a biosimilar version.
Additionally, pharmacists must get a whole new prescription for a biosimilar before swapping it in for a brand-name competitor. With traditional generics, that swap for the pharmacist is essentially automatic and requires no new prescription. While one of Humira's biosimilar competitors — Cyltezo, which will come to the U.S. market in July — has gotten a special Food and Drug Administration approval that allows for automatic swapping, most others have not.
Only one large insurer has said it will bring down the kind of financial hammer required to help biosimilars grab meaningful market share. David Chen, who directs specialty drug use for Kaiser Permanente, said the insurer plans to stop covering Humira by the end of 2023. He expects at least 90% of patients to switch to the biosimilar alternative, and said Kaiser should save hundreds of millions of dollars a year.
A reckoning on the horizon
If the biosimilar market once again falls short of its promise, economist Wosińska said she foresees a larger reckoning. She expects some drugmakers would deem the market fatally flawed and exit altogether, leaving fewer competitors to drive down the price of the next big biologic blockbuster.
Congress also could act to fix certain flaws, other experts said. They could change regulations, and try to make the market a cheaper, easier place for companies to thrive. Or, they could go in the opposite direction: embrace price regulation.
It's an option that was considered untouchable for many decades. But the passage of the Inflation Reduction Act of 2022, which gave the federal government new power to lower drug prices, has put that path squarely on the map.
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A humpback whale. (photo: Live Science)
The National Oceanic and Atmospheric Administration is considering new rules designed to stop large ships from colliding with North Atlantic right whales. The whales number less than 340, and they are vulnerable to ship strikes and entanglement in fishing gear.
The proposed rules would expand “slow zones” off the East Coast and require more vessels to comply with those rules. The environmental groups had asked NOAA to immediately implement pieces of the proposed rule that would aid the whales this winter and spring, when the whales travel from their calving grounds off the southern states to feeding grounds off New England and Canada.
The agency informed the conservation groups on Jan. 20 that it was denying the request on the basis that it is “focused on implementing long-term, substantive vessel strike risk reduction measures,” according to documents obtained by The Associated Press. NOAA also told the groups it was concerned the time needed to develop emergency regulations would prevent their quick implementation.
Members of the conservation groups, including Arizona-based Center for Biological Diversity and Massachusetts-based Whale and Dolphin Conservation, said they felt NOAA's decision was wrongheaded. Protecting the whales while they are on the move is especially important because mother whales and their young are at risk, said Regina Asmutis-Silvia, executive director of Whale and Dolphin Conservation.
“We know that the risk is there,” Asmutis-Silvia said. “You can't recover the population unless you have kids, and we want to make sure the kids survive.”
The population of right whales has been declining in recent years, and that has raised alarms among marine biologists, animal welfare activists and government regulators. Some scientists have said the warming of the ocean has caused the whales to stray outside of existing protected areas as they search for food.
Conservation groups and commercial fishermen have also been at odds over the correct way to protect the whales. The conservationists want new restrictions on lobster fishing to prevent the whales from getting entangled in gear, but those restrictions are currently on hold.
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