Later this month, the U.S. Supreme Court will decide whether to review an extraordinarily troubling decision by California’s 6th District Court of Appeals that poses serious hazards to our most basic constitutional protections of free speech and association.
The California court held that paint manufacturer Sherwin-Williams and two other companies be required to implement a sweeping lead paint abatement program in seven California counties and three cities. The decision would force them to pay hundreds of millions of dollars to inspect and remove paint from the interior walls, windowsills, and stairwells of private residences built before 1951.
This case revolves around advertisements that ran many decades ago. Cleveland-based Sherwin-Williams, which has sold paint since 1866, ran an ad in 1904 in two California newspapers touting the quality of its paint for exterior and interior uses, with no mention of lead. The court, nevertheless, cited this 114 year-old ad as an important factor in finding the company culpable for the fact that people applied lead paint to buildings afterward.
The state court also cited contributions that Sherwin-Williams had made between 1937 and 1941, totaling $5,000, to the Lead Industries Association. That association promoted the lawful use of “better paint” on lumber products, including lead paint. Sherwin-Williams itself made very few interior lead paints and discontinued the sale of lead paints for interior residential use in the early 1940s. But the court strikingly based liability on these two actions, the ad and the association donation. Similar findings were applied to the other two companies in the lawsuit. The court then held them all responsible for removing any lead paint inside the residences in the numerous designated California counties.
So, the basis for the imposition of this massive retroactive liability was not the manufacture, sale, or application of lead paint to the interiors of residences. Instead, Sherwin-Williams and the two other corporate defendants were held liable solely because they engaged in lawful commercial speech.
Importantly, it was only many decades after these ads ran that the federal government, based on new and improved scientific data, banned lead paint for use in residences. In short, the California court imposed nothing less than a duty of clairvoyance on the defendants. It does not take clairvoyance, however, to know how dangerous and damaging this decision, if not overturned, will be for First Amendment speech rights and the ability of advertisers to communicate without fear that future scientific findings imposed by government mandate will retroactively hit them with crippling penalties on a mass scale, not based on actual injuries to people hurt by lead but on the fact that people chose to buy and use lead paint as many as 110 years ago.
Unfortunately, this case is just one of many examples of ever-broadening use of “public nuisance” law as a platform to impose massive new tort liability on business.
Stripping speech of its First Amendment protection based on such retroactive assessments is bound to discourage vast amounts of commercial speech and create very broad and dangerous precedents affecting the advertising of products far beyond those immediately covered by this case.
This case is not just wrong; unfortunately, its negative implications are virtually limitless. It is critical that the U.S. Supreme Court agree to review the case and quickly overturn this severely misguided decision.
Dan Jaffe is group executive vice president of Government Relations for the Association of National Advertisers.
