Bloomberg Law
Feb. 21, 2023, 2:41 PM

J&J $302 Million Pelvic Mesh Fine a Skip for Supreme Court

Julie Steinberg
Julie Steinberg

Johnson & Johnson failed to convince the US Supreme Court on Tuesday to review a $302 million civil fine imposed by California’s attorney general in a pelvic mesh marketing case.

J&J argued its due process rights were violated because it didn’t have fair notice that the award under state consumer protection laws could reach that size.

Justice Samuel A. Alito Jr. took no part in the consideration or decision of the company’s petition.

Then-California Attorney General Xavier Becerra filed an enforcement action in 2016, alleging J&J and its Ethicon Inc. unit misrepresented the devices’ health risks, violating the state’s Unfair Competition Law and False Advertising Law. Each statute imposes a penalty up to $2,500 for each violation.

A trial court found that the companies committed 153,351 UCL violations and 121,844 FAL violations, based on the numbers of written and spoken marketing communications. It imposed a penalty of $1,250 for each one, arriving at a $344 million fine. The California Court of Appeal largely affirmed but threw out violations based on spoken communications, reducing the penalty to $302 million. The state’s top court declined review.

J&J contended it was unaware that each communication could be treated as a separate violation and lacked requisite notice of the potentially massive award. It asked the Supreme Court in November to clarify that a robust due process fair notice standard applies to deceptive practices statutes.

The company also said that consumer protection cases—with lesser burdens of proof—are essentially becoming mass torts but without the protective legal requirements such as a plaintiff needing to show individual injury and causation.

Business, legal, and medical groups filed friend-of-the-court briefs supporting J&J’s bid for review.

California maintained that the statutory text and California precedent provided ample notice to the companies that each of their many deceptive marketing communications could be considered violations.

And though the false-ad laws don’t impose all “elements of a tort claim,” that doesn’t make them unconstitutionally vague, California said. There are compelling policy reasons for a false advertising statute to deviate from traditional tort principles, it said.

California’s attorney general represents the state. Orrick, Herrington & Sutcliffe LLP represents J&J and Ethicon.

The case is Johnson & Johnson v. California, U.S., No. 22-447, cert. denied 2/21/23.

To contact the reporter on this story: Julie Steinberg in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at

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