The Supreme Court Should Review the Sherwin-Williams Case

August 20, 2018

ANA has filed a “friend of the court” brief urging the U.S. Supreme Court to review a critically important commercial speech case. The case involves the question of whether the First Amendment allows state tort liability for truthful commercial speech when a court later determines that a lawful product is hazardous. A California court has held the Sherwin-Williams Company liable for creating a public nuisance (the presence of interior residential lead paint) simply because it advertised lead paint for then-lawful uses over 70 years ago.  Our brief was filed in conjunction with the Atlantic Legal Foundation.

This is an outrageous ruling that cannot be allowed to stand. The California court has retroactively imposed multi-millions of dollars of damages on Sherwin-Williams by applying today’s scientific standards to ads that were published decades ago.

There is no evidence that Sherwin-Williams knew any more then about the risks of lead paint than policymakers or the scientific community. As our brief notes, the California courts now have imposed a duty of clairvoyance on all manufacturers in order to avoid future liability.  

A group of California counties and cities filed a lawsuit against Sherwin-Williams, seeking to hold the company responsible for abating lead paint in millions of residences in their jurisdictions. To hold the company liable for creating a public nuisance, the courts relied on an ad that Sherwin-Williams ran once in 1904 in the Los Angeles Times and the San Diego Union, as well as donations to a trade group that ran generic ads for better paint from 1937-1941. The company’s ad never mentioned lead and while the use of lead paint in residences was legal at the time, the Sherwin-Williams paints intended for interior residential use then did not contain lead. Nevertheless, because lead paint is now considered potentially hazardous, the courts held that Sherwin-Williams’ ad from 1904 was “inherently misleading” and not protected by the First Amendment.  

This case raises serious First Amendment issues regarding future liability for ads that were truthful and non-deceptive at the time they appeared. The potential implications of this decision are staggering for other products that may be hazardous. Several local governments are using this case as a model to assert public nuisance liability based on the ads of other companies, including the promotion of fossil fuels, chemicals and pharmaceutical products.

The Supreme Court has established a clear trajectory toward enabling greater protection for commercial speech, not less. We are involved in this case to preserve those rights and hope the Supreme Court will overturn this California decision.

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