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American Coatings Association Argues in Favor of Sherwin-Williams et al in California Lead Based Paint Case

ACA’s brief argues that basing tort liability on truthful advertising of a lawful product is an unconstitutional burden on commercial speech and by including truthful promotions by a trade association compounds the injury by burdening and ultimately impairing the right to freedom of association.  ACA and its members have a significant interest in seeking to reverse the decision. This expansion and misapplication of public nuisance could have far reaching consequences and, if the decision is left undisturbed, could be the basis for future litigation as well as state legislative initiatives codifying this expansion of public nuisance.

Arguments raised in the Petitions for a Writ of Certiorari by Sherwin-Williams and, jointly, ConAgra and NL Industries, include:

•Imposing retroactive liability on companies without any proof that they caused any identifiable injury violates due process;

•Imposing liability for speech without proof of reliance on that speech violates the First Amendment;

•The ruling improperly premises tort liability on truthful commercial speech and lawful association; and

•Permitting retroactive liability without proof of actual causation conflicts with the Court’s due process precedents.

In ConAgra, the California Court of Appeal affirmed a highly questionable trial court ruling, which held the defendant petitioners liable under a novel and overreaching public nuisance cause of action. The litigation started as a case against lead pigment manufacturers with five companies named as defendants. Over time (and past the date at which other companies could be named), the case morphed into a lead paint case. Thus, other companies not included in the original ConAgra case could be at risk of liability under this same expanded Public Nuisance theory.

ACA and its members have undertaken significant voluntary efforts to address the problems of lead arising from deterioration and the failure of property owners to maintain their property in lead safe condition.

Among other things, this included a 2003 landmark cooperative agreement with Attorneys General from 46 states, work on Presidential task forces under two administrations, and cooperation with numerous city and state agencies focused on preventing elevated blood lead levels in children. ACA was also instrumental in the creation of CLEARCorps USA, a private-public partnership providing lead hazard reduction support services across the United States.

Source: ACA

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