ANA Urges Supreme Court to Review Sherwin-Williams Case
ANA has urged the U.S. Supreme Court to review a critically important case involving 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. ANA filed its amicus curiae or “friend of the court brief” in conjunction with the Atlantic Legal Foundation.
“This is an outrageous ruling that cannot be allowed to stand, “said Dan Jaffe, Group Executive Vice President of Government Relations for ANA.“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.”
Jaffe noted: “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.
The ANA/Atlantic Legal Foundation brief argues that the decision clearly targets the commercial speech rights of Sherwin-Williams: “The linchpin for the imposition of massive retroactive liability was not the manufacture, sale or application of lead paint to the interiors of the residences, but its promotion. Petitioners were explicitly and exclusively held liable for speech.”
Jaffe emphasized: “This case raises serious First Amendment issues regarding future liability for ads that were truthful and non-deceptive at the time they appeared.”
Jaffe concluded: “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. We are also actively involved in lawsuits challenging the efforts of two local jurisdictions to impose mandatory health disclosures in ads for certain beverages and cell phones. The Supreme Court has established a clear trajectory toward enabling greater protection for commercial speech, not less. We are involved in these cases to preserve those rights.”
About the ANA:
The mission of the ANA (Association of National Advertisers) is to drive growth for marketing professionals, brands and businesses, the industry, and humanity. The ANA serves the marketing needs of 20,000 brands by leveraging the 12-point ANA Growth Agenda, which has been endorsed by the Global CMO Growth Council. The ANA’s membership consists of U.S. and international companies, including client-side marketers, nonprofits, fundraisers, and marketing solutions providers (data science and technology companies, ad agencies, publishers, media companies, suppliers, and vendors). The ANA creates Marketing Growth Champions by serving, educating, and advocating for more than 50,000 industry members that collectively invest more than $400 billion in marketing and advertising annually.