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California Lead Paint Ruling Deserves Review

WEDNESDAY, OCTOBER 3, 2018

By Industry Professionals


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By: J. Andrew Doyle, American Coatings Association President & CEO

 

Significant First Amendment rights are at risk in a recent California Court of Appeal ruling. Within a few days we will know if the U.S. Supreme Court will review this ruling, or if the high court will allow a serious blow to our constitutional right to freedom of association to stand.

The Supreme Court case involves three corporate defendants, including The Sherwin-Williams Company, held responsible for lead paint in all privately owned housing in 10 of California’s largest cities and counties. The decision declares all lead paint inside residences a public nuisance, even if well-maintained and permitted under federal and state regulations. The court, however, would force the defendants to pay hundreds of millions of dollars to fund an effort to strip all lead paint from the interior of residences.

The court mandate—to strip all lead paint from residential interiors—flies in the face of the recommendations of the U.S. Department of Housing and Urban Development and Enviromental Protection Agency that an intact, well-maintained coating of non-lead paint safely contains an underlying coat of lead paint in the interior of a residence.

© iStock.com / XiFoto

The court mandate—to strip all lead paint from residential interiors—flies in the face of the recommendations of the U.S. Department of Housing and Urban Development and Enviromental Protection Agency that an intact, well-maintained coating of non-lead paint safely contains an underlying coat of lead paint in the interior of a residence, according to Andrew Doyle, American Coatings Association President and CEO.

The legal reasoning applied by this ruling is also flawed, threatening a constitutional crisis for all manufacturers. Contrary to federal and Supreme Court precedent, the ruling erroneously based defendants’ tort liability on truthful promotions by a trade association about a lawful product.  

The case rested on two facts. First, a 1904 newspaper ad for paint that did not mention lead. Second, the company’s contribution of $5,000 to two promotional advertising campaigns sponsored by the Lead Industries Association between 1937 and 1941. Notably, the federal government did not ban interior lead-based paint until the late 1970s.

The California court engaged in a retroactive re-characterization of then-truthful speech about a lawful product and found it "misleading" based on decades of subsequent medical knowledge. The ruling utterly disregards U.S. Supreme Court precedents permitting the truthful promotion of lawful products.

One of the most prominent and useful expressions of our First Amendment rights is the trade association. Federal courts have lauded trade associations for “sponsoring educational activities, and assisting in marketing, maintaining governmental relations, researching, establishing public relations, standardization and specification within the industry, gathering statistical data and responding to consumer needs and interests,” as well as assisting the government in areas it does not regulate. The EPA has praised trade associations for providing “critical technical expertise” to regulators.

© iStock.com / Marilyn Nieves

The California court engaged in a retroactive re-characterization of then-truthful speech about a lawful product and found it "misleading" based on decades of subsequent medical knowledge.

Unless taken up and reversed by the Supreme Court, the California ruling will have a substantial, immediate, chilling effect on companies’ ability to engage in such useful civic activities by participating in trade associations. The stark premise of this ruling is that a company’s contributions to a trade association used to promote a lawful product for a legitimate and permissable use may one day be ample evidence of liability. This broad, unprecedented and unconstitutional form of liability can easily ensnare companies across numerous industries, leading to a wariness and arrest on the willingness of businesses and groups of all sorts to associate.

Unless this ruling is reviewed and reversed, companies that participate in trade associations—even with regard to the sale of lawful products with no showing of intentionally misleading, untruthful or unlawful conduct—do so at their peril.

Such sharp infringement on First Amendment rights should not be allowed.

The U.S. Supreme Court must now act to untangle this knot of faulty reasoning.

About the Author

J. Andrew Doyle is the President and CEO of The American Coatings Association, a voluntary, non-profit trade association representing some 250 manufacturers of paints and coatings, raw materials suppliers, distributors and technical professionals.

ABOUT THE BLOGGER

Industry Professionals

In this occasional blog series, professionals and members of various industry organizations and associations speak on events or issues facing the industry.

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Tagged categories: American Coatings Association (ACA); Laws and litigation; Lawsuits; Lead; Lead; Lead paint abatement

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