The High Court has dismissed a petition seeking an immediate ban on talc-based Johnson and Johnson baby powder, ruling that claims the product causes cancer were not supported by sufficient evidence, and that existing consumer protection mechanisms had not been exhausted.
The court found that the petitioner, Frederick Bikeri, failed to prove that Johnson and Johnson baby powder sold in Kenya was carcinogenic or posed a demonstrable threat to consumers.
The judge also held that the dispute should first have been pursued through statutory consumer protection and product standards processes before being lodged as a constitutional case.
“The petitioner has failed to establish, to the required standard of proof, that the talc-based Johnson and Johnson baby powder sold in Kenya is carcinogenic,” the court said in the judgment.
The multinational has paid billions of dollars to claimants who sued it in the United States where the company is still fighting other cases brought by litigants alleging that its products -primarily Johnson’s Baby Powder- causes cancer.
The consumer goods maker paid $2.5 billion to one group of claimants in June 2021.
“Notwithstanding the company’s confidence in the safety of its talc products, in certain circumstances the company has settled cases,” Johnson and Johnson said in its latest annual report.
Bikeri had sued Johnson and Johnson entities, the Kenya Bureau of Standards (KEBS), the Public Health Standards Board and the Health ministry. He sought orders to stop the manufacture, importation, sale and distribution of the product in Kenya.
He also wanted all existing stocks withdrawn from the market and an order compelling regulators to undertake comprehensive testing and research into the product’s safety.
The petition was anchored on a July 2024 assessment by the World Health Organization’s International Agency for Research on Cancer (IARC), which classified talc as “probably carcinogenic to humans.”
The petitioner argued that the continued sale of talc-based baby powder violated constitutional rights to life, health, information and consumer protection.
He further relied on litigation in the United States linking Johnson and Johnson talc products to ovarian cancer, as well as restrictions and recalls implemented in countries including Tanzania, Zimbabwe, Sri Lanka and the Republic of Congo.
The petitioner told the court that despite Johnson and Johnson’s global announcement in 2022 that it would discontinue talc-based baby powder, the product remained available in Kenya.
Johnson and Johnson opposed the case, arguing that no credible evidence had been presented to show products sold in Kenya were contaminated with asbestos or were carcinogenic.
The company maintained that its decision to phase out talc-based baby powder was a commercial decision linked to a transition to cornstarch products and not driven by safety concerns.
KEBS also opposed the petition, saying it had already taken regulatory action after a 2019 alert issued by the U.S. Food and Drug Administration concerning a specific batch found to contain traces of asbestos.
According to KEBS, investigations established that the affected batch, identified as 22318RB, had never been imported into Kenya.
The standards agency said it subsequently revised regional standards to require mandatory asbestos testing for baby powder imports and subjected such products to stricter inspection under the Pre-Export Verification of Conformity programme.
The court agreed that KEBS had acted within its mandate and taken reasonable measures to address consumer safety concerns.
“The evidence demonstrates that it took timely and proportionate regulatory action,” the court said.
It found that the petitioner had not lodged complaints through mechanisms established under the Consumer Protection Act and Standards Act before filing the constitutional petition.
The court said those laws already provide frameworks for consumer complaints, product testing, regulatory enforcement and dispute resolution.
Further, the court noted that no evidence had been presented showing cancer cases in Kenya linked to Johnson and Johnson baby powder or proving contamination of products available in the local market.
“The claims remain speculative and unsubstantiated,” he said, dismissing the petition in its entirety.