Congressional Record, Senate — February 15, 2022, S683
Summary
This is S683 and S684 of the Congressional Record, Senate, February 15, 2022, with interleaved columns. A Senator not identified in the text read speaks about the Texas two-step bankruptcy strategy used by Johnson & Johnson, citing testimony from Kimberly Naranjo at a Judiciary subcommittee hearing and saying that an estimated 38,000 people with talc claims would be limited to a $2 billion trust fund. The speaker says he cosponsored legislation with Ms. Warren and Mr. Blumenthal to close bankruptcy loopholes. Under the heading Inflation, Mr. Thune cites a headline that U.S. inflation was highest in 40 years, with the views attributed to the speakers.
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“Congressional Record, Senate — February 15, 2022, S683.”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/crec-crec-2022-02-15-crec-2022-02-15-pt1-pgs683-0428e85712/
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February 15, 2022 CONGRESSIONAL RECORD — SENATE S683
the Texas two-step. So, step 1, create a $2 billion from them already, so you key test of this Texas two-step and
shell company and transfer your legal know that 38,000 people are not going whether wealthy corporations continue
liabilities; step 2, have the new com- to go very far with $2 billion total. to abuse chapter 11 bankruptcy to
pany immediately declare bankruptcy. What is left in the other fat corpora- dodge their legal obligations to victims
So far, four major corporations have tion—profitable corporation, big cor- like Ms. Naranjo.
used the Texas two-step and bank- poration—in that bankruptcy division? It is not just lawmakers like me who
ruptcy to try to avoid legal account- More than $430 billion. Johnson & believe that the Texas two-step can de-
ability for their own wrongdoing. Johnson stuck all of its assets into prive victims like her of their day in
The case that the subcommittee ex- more than the healthy corporation court; listen to what the author of the
amined last week involved the that can’t be sued and left $2 billion for Texas divisive merger statute, Steven
healthcare and pharmaceutical giant all of these victims of its dangerous Wolens, said earlier this week about
Johnson & Johnson, the maker of product. What a cynical move for a the law that brought the Texas two-
Johnson’s baby powder. As I mentioned company to make. step to life: ‘‘Had we known in 1989 that
earlier, how many of us fathers, moth- Kimberly Naranjo, a mother of seven, [the] provisions could be dubiously in-
ers, and kids changing diapers did it in is one of those 38,000 Americans who terpreted for entities to avoid known
a cloud of Johnson & Johnson’s baby will lose her right to sue Johnson & liabilities such as those causing severe
powder? Johnson and be forced to wait in line in and permanent injuries and deaths,
For years, Johnson & Johnson denied bankruptcy court for some sliver of [the law] would never have passed with
the story that its products contained justice. the ‘Texas two-step’ provision. Never,
asbestos. We know that substance can She testified at last week’s hearing. never, never.’’
cause cancer and mesothelioma. Then Her story is not an unusual one. Ms. Mr. Wolens also said: ‘‘Shame on
it claimed that any amount of asbestos Naranjo grew up surrounded by addic- [Johnson & Johnson] for trying to
in its baby powder was just too small tion and abuse. She moved from one evade its liabilities for products it sold
to cause any harm. But internal com- foster family to another. She had her with its golden stamp of approval for
pany documents at Johnson & Johnson first baby when she was 19 years old. safety.’’
obtained through discovery told a dif- She used Johnson’s baby powder on all When a legislator like Mr. Wolens
ferent story. They showed that John- seven of her children. It was, she said, publicly states that the company is in-
son & Johnson knew of tests going ‘‘that white plastic bottle that I associ- tentionally misusing the law he wrote,
back decades which found the presence ated with motherly love.’’ I don’t think there is any room for un-
of asbestos in their products. While That was the same message Johnson certainty or equivocation; this is a
they were actively advertising the use & Johnson used in its baby ads. They shameful, indefensible strategy on the
of this product by adults for use on our used to say their product ‘‘feels like part of Johnson & Johnson.
babies, they knew there was asbestos love.’’ I hope the courts reject Johnson &
in their product. Ms. Naranjo started her dream job. Johnson’s abuse of bankruptcy laws,
In 2018, a jury in Missouri ruled in But a week later, she felt a pain in her but I also believe Congress needs to do
favor of 22 women who attributed their side. She went to the doctor and, sadly, something. We need to close this loop-
ovarian cancer to Johnson & Johnson learned she has mesothelioma. She was hole for good.
talc products. The women won an told she had 12 to 16 months to live. In July last year, I joined two of my
award of $2 billion. Remember that She knows she can’t beat mesothe- colleagues, ELIZABETH WARREN and
number: 22 women in Missouri, an lioma. Nobody does. All she wants is a RICHARD BLUMENTHAL, in cosponsoring
award of $2 billion. chance to make her case in court be- legislation which would rein in various
Today, there are an estimated 38,000 fore she dies so she can leave some- bankruptcy loopholes like the Texas
people with ovarian cancer or mesothe- thing to her kids. two-step. I am committed to working
lioma who have sued Johnson & John- So she came to Washington to testify toward this goal. I hope Democrats and
son, alleging that the company’s tal- before us in that Judiciary sub- I hope Republicans can work together
cum products caused their illness, but committee last week, her voice rep- on a bipartisan basis to stop this bank-
Johnson & Johnson’s use of this Texas resenting thousands of cancer victims ruptcy abuse. Bankruptcy is supposed
two-step divisive bankruptcy means who went through exactly what she to be a good-faith way to accept re-
that these 38,000 cancer victims are no did, exposing themselves to Johnson & sponsibility, pay one’s debts as best
longer able to bring their claims Johnson’s dangerous product. I com- you can, and then receive a second
against the company. They have lost mend her and thank her for her cour- chance—not a Texas two-step, get-out-
their right to have their case heard in age. She is fighting for her kids and all of-jail-free card for some of the
court because Johnson & Johnson, this the other victims, incidentally, whose wealthiest corporations on Earth, like
giant company, has created a bank- voices would be silenced by this Texas Johnson & Johnson.
ruptcy in a shell corporation that has two-step bankruptcy. As she said in her I yield the floor.
absorbed all of the legal liabilities of testimony, ‘‘I don’t have much time I suggest the absence of a quorum.
the original Johnson & Johnson. So left, but I will not quit.’’ The PRESIDING OFFICER (Mr.
anybody who wants to sue them now Over the past few months, I decided PADILLA). The clerk will call the roll.
has to get in line in bankruptcy court to write to Johnson & Johnson. This is The legislative clerk proceeded to
with all the creditors and alleged vic- a company that used to take such pride call the roll.
tims and wait and hope there will be a in their products. I remember all Mr. THUNE. Mr. President, I ask
day when some fraction of the trust through my life the advertising associ- unanimous consent that the order for
fund that Johnson & Johnson gave to ated with their products: wholesome, the quorum call be rescinded.
its shell company when it spun it off safe help for families. I wrote to the The PRESIDING OFFICER. Without
and loaded it down with legal liabil- former CEO and the current CEO, and I objection, it is so ordered.
ities may provide some relief. The urged them to change course, back way INFLATION
chances: next to none. from this Texas two-step, abandon this Mr. THUNE. Mr. President, the AP
Stick with me and do the math. We cynical scheme, and hold yourself ac- headline from last Thursday said it all:
ended up with two companies. Once, it countable to the people who trusted ‘‘U.S. inflation highest in 40 years,
was just Johnson & Johnson, and then your product. I urged Johnson & John- with no letup in sight’’—with no letup
two companies emerged out of the son to live up to its reputation of being in sight. That is life in the Democrats’
bankruptcy court in Texas. The one a company that family and consumers America. In January, U.S. inflation hit
dlhill on DSK120RN23PROD with SENATE
company with the liabilities—the one can trust. Sadly, they ignored me. 71⁄2 percent—the highest inflation since
you can actually sue if you can get This week, a bankruptcy court is February of 1982. Inflation has now
into court—they created a trust fund considering a motion by talc claimants been above 5 percent for the last 8
for that company of $2 billion. They to dismiss the bankruptcy of the shell months.
have 38,000 outstanding claims. Twen- company that Johnson & Johnson spun There are people raising families
ty-women women in Missouri recovered off to unload its legal liabilities. It is a today who have never experienced this
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S684 CONGRESSIONAL RECORD — SENATE February 15, 2022
kind of inflation in their entire life- ‘‘The United States has had much more in- to the debt, which is already $30 tril-
times. American families are hurting— flation than almost any other advanced lion. Those are the solutions of our col-
hurting badly. The average American economy in the world,’’ said Jason Furman, leagues on the other side.
an economist at Harvard University and I would say, end—stop in its tracks
household spent an estimated $3,500
former Obama administration economic ad-
more last year as a result of inflation— viser, who used comparable methodologies to
cold—the wasteful spending. Two, don’t
$3,500. That is a lot of money for an or- look across areas and concluded that U.S. raise taxes. Provide some certainty.
dinary family—a lot. Everywhere they price increases have been consistently faster. Maybe even make permanent a lot of
turn, families are facing higher prices. The difference, he said— the tax relief that was put in place in
Whether it is ground beef for the chili, This is Jason Furman, former Obama the 2017 tax law. Three—how about
bunk beds for the kids’ room, or a new administration economic adviser. this? How about this idea? How about
car to accommodate a new addition to The difference, he said, comes because ‘‘the we become energy independent in
the family, higher prices are the order United States’ stimulus is in a category of America, which is where we were?
of the day. its own.’’ We were actually exporting energy in
The price of chicken is up 10 percent. Despite all of this, despite the fact the previous administration for the
Pork is up 14 percent. Beef roasts are that it was Democrats’ massive March first time in American history—at
up 19 percent. Eggs are up 13 percent. spending spree that helped plunge our least in my lifetime—where we actu-
Citrus fruits are up 10 percent. Whole economy into this inflation crisis— ally had energy policies that were pro-
milk is up 8 percent. The list goes on. there are still Democrats out there ducing American energy on a level that
Furniture and bedding were up 17 per- who want to double down—double was keeping energy costs low for Amer-
cent. Major appliances are up almost 10 down—on the strategy that helped get icans and enabling us to actually ex-
percent. Tires are up 14 percent. Used us into this mess in the first place and port energy to other places around the
cars and trucks are up 40 percent. pass yet another massive spending world.
And then there are energy prices. spree that would undoubtedly make That came to an abrupt end when
Fuel oil is up 46 percent. Gas prices are this inflation disaster even worse. President Biden came to office. Demo-
up 40 percent. Natural gas is up nearly ‘‘U.S. inflation highest in 40 years crats got control of both Houses of
24 percent—and on and on and on. with no letup in sight.’’ Congress, and what happened? First
Predictably, inflation is having its ‘‘No letup in sight.’’ thing, day one—day one in office, first
biggest impact on those least able to That was the headline. That is where day, first thing he did—President Biden
afford it. A recent Penn Wharton Budg- Democrat policies have gotten us. canceled the Keystone XL Pipeline,
et Model study found that lower-in- I was actually pleased to hear this which would have allowed us to get en-
come houses, on average, faced an even morning the Democratic leader come ergy fuel oil from where? Our friend,
greater spending increase in 2021 when down here and talk about inflation. It our neighbor, Canada, the Canadians,
compared to higher-income households, seems to be at least—maybe because of and move it through a pipeline to
as a result of inflation. polling or whatever—starting to be re- places across the United States, help-
It is no wonder 69 percent of Ameri- alized by my colleagues on the other ing fill the demand with additional
cans disapprove of the President’s han- side of the aisle that this is an issue supply that Americans need to power
dling of inflation. Democrats have that is having a massive and very ad- their everyday lives—first thing in of-
talked about wage growth. Here is the verse impact on the pocketbooks of the fice, first day in office. It hasn’t
story on wages. Despite wage growth, American people, particularly low-in- stopped there.
Americans received a de facto pay cut come Americans, because, you see, in- The administration decided that en-
in 2021, thanks to inflation. Between flation is a tax that hits every Amer- ergy, evidently, is evil, at least if it
January 2021 and January 2022, real av- ican, but it affects and impacts lower- comes from the ground, and decided to
erage hourly earnings declined by 1.7 income and middle-income Americans cancel a bunch of projects. There are
percent—a pay cut. the most. all kinds of areas now that are off-lim-
How did we get here? Obviously, the The Democratic leader said that Re- its to energy exploration, energy pro-
reopening of economies and supply publicans should quit complaining duction in this country. There are lots
chain issues have created inflationary about inflation and start doing some- of regulations and permitting things
pressures for the United States and thing about it. Well, we obviously don’t that are slowing down energy projects,
countries around the world. But a big have the majority. The Democrat’s so- making it more difficult, more expen-
part of the reason things are so bad in lution to this, as I pointed out, is an- sive to produce American energy, lead-
the United States today is because other $5-trillion spending bill. Oh, ing us, leading Americans, to a place
Democrats decided to pass a massive yeah, that will solve the problem. Let’s we didn’t want to be, a place where we
so-called COVID relief bill last March flood the zone with another $5 trillion were a few years ago; but we are going
that far exceeded anything the econ- on top of the $2 trillion already out hat in hand to Saudi Arabia, to OPEC
omy needed. That is right. When Demo- there, have even more dollars chasing countries, saying: Please, please
crats took office last January, infla- fewer goods, driving inflation even produce more energy. We need more
tion was 1.4 percent, well within the higher. energy in this country.
Fed’s targeted inflation rate of 2 per- One thing we can do, what Repub- What has happened is predictable,
cent. licans have advocated, is let’s end and what has happened is this: The de-
It might have stayed there had wasteful spending. Let’s don’t do crazy mand for energy in this country is
Democrats not decided that they need- stuff. Let’s don’t massively expand the great. We are coming out of a pan-
ed to pass a massive and partisan $1.9- size of government and flood the econ- demic. People are going back to work.
trillion spending spree under the guise omy with more dollars at a time when They need, during the winter months,
of COVID relief mere weeks after Con- inflation is already raging. That is a to heat their homes. They need fuel to
gress had already passed a major really simple solution. get where they need to go—transpor-
COVID bill—one of five COVID bills, I Another solution is not to raise tation—to work, to travel. So the de-
might add—that passed in 2020, all bi- taxes, which is, again, something mand for energy is up, the supply is
partisan. Democrats have proposed: raising taxes going down; so what is happening?
The definition of inflation is too by $1.5 to $2 trillion to partially—and I Boom. Simple. It is really pretty sim-
many dollars chasing too few goods and say partially because the cost of $5 tril- ple. It is economics. The price is going
services. That is exactly the situation lion doesn’t get compensated for by up. So the price of oil in this country
Democrats helped create with their so- $1.5-trillion tax increase but tax in- is now pushing $100 a barrel. Gasoline
dlhill on DSK120RN23PROD with SENATE
called American Rescue Plan. They creases, nonetheless; all of which, of prices, as I mentioned, are up 40 per-
sent too many dollars into the econ- course, get passed on to consumers, cent—40 percent—over a year ago. It is
omy, and the economy overheated as a raising inflationary pressures even simple math. It is simple economics.
result. You don’t have to take my word more. They want to raise taxes mas- And there are some Democratic Sen-
for it. Let me just quote a recent New sively and grow the government and ators now who are suggesting: Let’s
York Times article: spend money and add about $3 trillion just waive the gas tax temporarily—
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February 15, 2022 CONGRESSIONAL RECORD — SENATE S685
the gas tax which pays for all the infra- astating epidemic of opioid use dis- blown dependence on heroin for count-
structure that we travel on in this order, overdoses, and deaths. Since less Americans. Even well into the cri-
country and which would leave a huge 1999, almost 1 million Americans have sis, the FDA continued to approve pow-
hole, obviously, in the highway trust died of drug overdoses, with the vast erful new opioids, either over the ex-
fund, which is critically important to majority of those deaths attributable press objections of its own advisory
every State in the Union that depends to opioids. committees or without convening an
upon the Federal Government and the As our country continues to deal advisory committee at all. The FDA
highway trust fund and the fuel tax—to with the COVID–19 pandemic, we must became the country’s biggest pill push-
fund the infrastructure that enables remember and prioritize this other er, and Big Pharma made billions in
our economy to move and keeps us deadly public health emergency. profits.
competitive in the global marketplace. In 2020, overall drug overdose deaths The Nation’s pharmaceutical watch-
That is their solution. reached an alltime high for the year, dog became the Nation’s pharma-
Now, it is short-term—short-term, with approximately 93,000 Americans ceutical lapdog, and the country be-
obviously to benefit—to try to gain losing their lives. More than 60 percent came the ‘‘United States of Oxy.’’ I
some political advantage at a time of those deaths were from synthetic consistently raised concerns about the
when people, all of a sudden now on the opioids like fentanyl. That is a stag- FDA’s egregious mishandling of opioid
other side, are starting to worry. Ef- gering 69,000 Americans dead from an approvals when Dr. Califf was first
forts are being led by four Democrats opioid-related overdose—more than nominated to be Commissioner in 2015.
who are up for reelection this year. No gun violence, more than car accidents, At that time, I opposed Dr. Califf’s
surprise there because they have un- more overdose deaths than ever before nomination until the Agency took
derstood now what we know, and that in our history. steps to rescind approval for pediatric
is the American people are fed up and We cannot let the tragedy of COVID– OxyContin—yes, OxyContin for kids. I
frustrated—fed up and frustrated with 19 overwhelm the daily suffering of the demanded the FDA commit to impanel
policies that are driving up the cost of opioid epidemic. Sadly, for the scourge advisory committees for all opioid reg-
everything that they have to buy, from of opioid misuse and overdose in our ulatory decisions and consider public
the groceries in the store, to the rent country, there is no vaccine. health factors in opioid regulatory de-
that they pay, to the gas they put in My home State has been hit espe- cisions, in particular the impact of new
their automobiles. Everything is going cially hard. In Massachusetts, more opioids on opioid misuse and depend-
up. than 2,100 residents died from an opioid ence.
Energy factors into almost every- overdose in 2020—a 5-percent increase When the FDA did attempt to ad-
thing we do. A pound of hamburger from the previous year—and many dress its failures in regulating opioids
that you buy at the grocery store prob- more struggled with opioid use dis- after strong criticism from me and
ably had to get there from somewhere, order. Early data from 2021 shows this many of my colleagues, Dr. Califf and
unless you live in the middle of the unfortunate trend continued through Dr. Janet Woodcock requested a Na-
country where some of us do. But if the first 9 months of last year, where tional Academy of Sciences study of
you live on one of the coasts, you prob- 1,613 people died in Massachusetts from FDA’s policies for evaluating opioids—
ably had to have transportation to get opioid overdoses. not a major step but at least an effort
it to the destination, so it is factored We cite these numbers with outrage to recognize its participation in the
in—it is baked in the cost of every- and disbelief, but for impacted families epidemic.
thing. When fuel prices go up, natural and loved ones, it is an ever-present That study emphasized many of the
gas prices go up, when the cost of en- mourning for lost opportunities, fu- efforts which I urged Dr. Califf and the
ergy generally goes up, everything else tures gone too soon, and unanswered FDA to undertake back in 2015; in par-
goes up with it. It is economics. questions; all the while, for each and ticular, the need to include public
The solution isn’t a short-term polit- every community, there is the growing health factors at every level of FDA
ical ruse to try and provide political challenge still to be addressed. regulation of opioid drugs. But to date,
cover to people who are running for re- In Congress, my colleagues and I the FDA still has not implemented
election. It is to put policies in place have worked to respond to this crisis, many of those recommendations. And
that encourage American energy inde- passing several bipartisan packages— where it has taken steps to do so, it has
pendence, that invest in American en- the Comprehensive Addiction and Re- not gone far enough to address its past
ergy. That can be done in ways now covery Act, CARA, and the SUPPORT failures.
with technologies we have that are en- Act to help bring relief to our commu- There was no real commitment to re-
vironmentally friendly. nities. forming the FDA or to learning from
But we have to be energy inde- I am proud several pieces of legisla- the mistakes that enabled this public
pendent. We can’t depend upon other tion I authored to fund and expand health crisis.
countries around the world that are opioid use disorder prevention and At this point, the opioid epidemic has
unreliable to fuel and fund and run our treatment programs became law in evolved from being driven by prescrip-
economy. That investment should be those packages. Those investments are tion drugs to being fueled by the illicit
here in the United States of America. important, and we must continue to synthetic opioids, like fentanyl. But
And if we solve more of that, we would build on them, but we cannot forget that does not dismiss the FDA from ac-
see less inflation, lower fuel prices. how we reached this epidemic in the countability or the need for reform.
If we end the crazy spending ideas first place or we are doomed to repeat When I met with Dr. Califf last year,
and tax ideas coming out of the other it for those families. I asked him to commit, if confirmed as
side, we could restore some sanity to Those failures started at Big Pharma FDA Commissioner, to finally change
this country when it comes to these and were aided and abetted by the Food FDA’s processes to ensure it does not
out-of-control prices, which is a tax, and Drug Administration. The FDA is make the opioid overdose epidemic
literally, on every American and hits supposed to be our Nation’s pharma- worse than it already has. During our
particularly hard those who are strug- ceutical gatekeeper, but over many meeting, Dr. Califf did not commit to
gling to make ends meet. years, it repeatedly rubberstamped new the decisive and comprehensive action
I yield the floor. prescription painkillers that increased which we need.
The PRESIDING OFFICER. The Sen- the risk of misuse and dependence. After years of Agency failures and in
ator from Massachusetts. As evidence of the deadly harm those the midst of a worsening opioid epi-
NOMINATION OF ROBERT MCKINNON CALIFF opioids caused became clear, the FDA demic, we need FDA leadership that is
dlhill on DSK120RN23PROD with SENATE
Mr. MARKEY. Mr. President, I rise did almost nothing. It acted too slowly fully committed to using all of the
today to speak in opposition to the to remove them from the market, to Agency’s oversight authority to pro-
nomination of Dr. Robert Califf to lead limit access to those supercharged tect public health.
the Food and Drug Administration. opioids. I cannot support Dr. Califf’s nomina-
For more than two decades now, the What started as an OxyContin pre- tion in light of that critical mandate
United States has suffered a dev- scription for back pain became full- which we need. We need a leader at the
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