Tag: ConAgra

When Courts Play Public Nuisance

 

There is a deep and growing split between the conservative judges who are being appointed to the federal bench and the progressive judges who dominate state courts in places like California. The tension between these rival judicial philosophies is highlighted by the 2017 decision of People of California v. ConAgra and Sherwin-Williams, which on the basis of California law ordered these two companies “to pay $1.15 billion into a fund to be used to abate the public nuisance created by interior residential lead paint” in residential units built before 1951 in ten populous California counties. Of that sum, about $400 million will be used to identify residences that might contain some lead paint.

Yet it was undisputed that the sale of lead paint for interior use was both common and legal at that time and was only banned federally for interior surfaces as of 1978.


The People’s novel public nuisance theory insists that these defendants are fully liable for their “affirmative promotion of lead paint for interior use, not their mere manufacture and distribution of lead paint or their failure to warn of its hazards,” wholly without regard to whether anyone had ever relied on these promotional materials, none of which made any false or misleading health or safety claims about lead paint. It was sufficient that one Sherwin-Williams advertisement from 1904 insisted, “Put S.W.P. on your house and you will get satisfaction and save money every time.” Similar advertisements noted that Sherwin-Williams paints came in 48 shades. The company made $5,000 in contributions to the lead paint association between 1937-1941.