Supreme Court Refuses to Hear Important Commercial Speech Case

October 16, 2018

We were concerned to learn today that the U.S. Supreme Court has refused to hear an appeal from the Sherwin-Williams Company and others regarding a key case on advertising and nuisance law. A California court has held those companies liable for hundreds of millions of dollars to abate a public nuisance (the presence of interior residential lead paint) simply because they advertised lead paint for then-lawful uses over 70 years ago. ANA and other industry groups filed “friend of the court” briefs several weeks ago urging the Court to hear the appeals due to the important constitutional questions involved.

This case raises serious First Amendment issues regarding future liability for ads that were truthful and non-deceptive at the time they appeared. The California court has retroactively imposed massive damage penalties on several companies by applying today’s scientific standards to ads that were published decades ago. Even worse, the court did not require proof of any connection between the ads and any injury – the advertising itself was claimed to be the harm.

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.

As our brief noted, the California courts now have imposed a duty of clairvoyance on all manufacturers in order to avoid future liability.

The Supreme Court’s decision did not address the merits of the First Amendment claims involved and the California decision is an outlier. We believe the Supreme Court will need to take up this issue in the future as other jurisdiction pursue these types of nuisance claims. We will continue our efforts to see that the commercial speech rights of all marketers are protected.

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