Whether it is movies, music or fashion, California has never been short of exports to the rest of the United States. But not all its offerings are as wholesome as the Beach Boys. California’s creative reinterpretation of public nuisance law is now inspiring copycat lawsuits to victimize honest businesses around the country, most recently in a lead paint litigation threatened last week in Delaware, Lehigh, and Montgomery Counties, Pennsylvania.
Before California’s distortion tort law spreads further, the U.S. Supreme Court should seize the opportunity to review the decision in favor of ten California municipalities in The People of California v. ConAgra Grocery Products Company, 17 Cal. App. 5th 51.
The California plaintiffs’ claim is that three former paint manufacturers are primarily responsible for lead paint in residences. In its decision, California’s Sixth District Court of Appeal ignored the science that led the U.S. Department of Housing and Urban Development and EPA to advise that properly maintained lead paint is not a hazard and does not need to be abated.
It also brushed aside the fact that lead paint was lawful for residential use until the 1970s and often specified by government at all levels because of its washability and durability. The California courts held the three former manufacturers liable for their advertising of lead paint before World War II.
Punishing a company for corporate speech promoting a common, lawful product smacks of the ex post facto tactics that angered our Founders. Allowing the punishment of a company for past lawful actions flies in the face of due process and endangers every company that is doing business in good faith today. Every citizen has a constitutional right to know in advance what conduct the government considers to be illegal. No person and no corporation should be held liable in 2018 for conduct that was lawful a century ago. Our constitution protects us from such unfair, retroactive liability.
Moreover, the very first amendment to our constitution – signaling its importance to our Founders – guarantees the right to free speech, including truthful commercial advertising. To be sure, government may regulate false or misleading advertising, such as advertising that a paint contains a desirable ingredient that it does not have.
But California has imposed massive liability on ordinary ads for lawful products. The First Amendment protects lawful advertising for good reason. Consumers depend on ads every day to find products that they want and need. They rely on ads to give them information upon which to make important decisions, like what car or appliance to buy, where, and at what price.
Consumers and our economy depend on a free flow of advertising. But if companies fear that their present-day advertising, however lawful it may be, will be retroactively punished decades later, then, what executive would not worry about placing an advertisement? As more states and municipalities see the potential paydays these lawsuits offer, this threat will extend to more and more industries, and we are likely to see less advertising in the future.
For these reasons, the Supreme Court should agree to review the California decision. If not, we face the prospect that these kinds of public nuisance lawsuits continue to spiral out of control, stray further from established law, and do grave and permanent damage to our American constitutional values and to commerce.
Bonnie Campbell served as Attorney General of Iowa from 1990 to 1994 and was appointed by President to direct the U.S. Department of Justice Office on Violence Against Women from 1995 to 2001. She lives in Des Moines, Iowa and is an attorney in private practice.