August 17, 2018

Lead paint, public nuisance, and the First Amendment

By Deborah J. La Fetra Senior Attorney

Prior to 1951, lead paint was lawfully sold and used in the interior of houses. This presented no problem at the time, but, as it ages and deteriorates, and as little children gnaw on windowsills and such while teething, it can become a source of lead poisoning. For this reason, the use of lead paint inside residences was outlawed. But now, 70 years later, a California appellate court has held in People v. ConAgra Grocery Products Co. that three companies that lawfully sold lead paint liable for creating a public nuisance. They must pay hundreds of millions of dollars into an “abatement” fund to investigate residential lead paint in the state’s ten most populous counties, and remediate any dangerous conditions found there.

The companies are not liable because they manufactured the paint, or sold it; or because any Californian has established an injury caused by the paint. No, the court found them liable because, in the first half of the Twentieth Century, they promoted the use of then-lawful lead paint. After the California Supreme Court refused to hear the case, Conagra filed a petition in the U.S. Supreme Court, asking it to review and reverse this ruling, which violates principles of due process and retroactively punishes protected First Amendment speech. Today, PLF filed an amicus brief supporting the petition.

As I explain in today’s Daily Journal, the First Amendment protects the dissemination of truthful commercial messages about lawful products and services, even when those products may later result in harm to someone. Free speech is particularly crucial to encourage study to challenge and expand existing scientific understanding. Companies should always seek ways to make their products safer and should not be deterred by fear that an improved product today could result in retroactive liability for mere promotion of the lawful product of yesteryear.

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ConAgra Grocery Products v. California

The State of California brought a lawsuit in 2000 to abate the alleged public nuisance caused by five companies’ manufacture and sale of lead paint at a time when lead paint was legal. The trial court found three of the companies to be liable for creating a public nuisance and ordered them to pay over a billion dollars into an abatement fund. As a consequence, the court opinion declares almost all properties in California that have lead paint on them to be per se public nuisances – exposing property owners to massive tort liability. The companies appealed and PLF filed an amicus brief arguing that argue that declaring lead paint to be a public nuisance violated the due process rights of both the paint companies and California property owners. The decision from the U.S. Supreme Court was unfavorable in that the cert petition was denied.

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