by Mitch Kokai
Senior Political Analyst, John Locke Foundation
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. …
… 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.