The U.S. Supreme Court is weighing whether to review a California Court of Appeal’s decision that holds three former lead paint manufacturers solely responsible for remediating lead paint inside hundreds of thousands of houses. At stake is whether public nuisance suits will be allowed to subvert the rule of law and basic constitutional protections.  As law professors, we find the California decision highly objectionable and believe that Supreme Court review is essential.

Similar efforts to sue former lead paint manufacturers have failed in seven states. So why are we so concerned about one decision in California?  One lawless and activist decision can become a model to follow in other public nuisance lawsuits.  Such lawsuits can now be expected to continue nationwide, with the prospect of a jackpot contingent fee motivating trial attorneys.

Why is the California decision bad law?  The California courts ignored two critical elements essential to any public nuisance complaint — causation and the very definition of public nuisance.

Causation is the principle that a person is responsible only for harm that he or she caused.  The California plaintiffs’ experts could not say that any defendant’s advertising caused any increase in the interior use of lead paint.  Indeed, plaintiffs did not have to prove that any defendant’s lead paint is actually present inside any of the houses to be abated.  With no proof of causation, California held each defendant liable to inspect and abate all lead paint inside every house built before 1951 in ten of its largest cities and counties.  This is an outrageous abuse of tort principles to conscript private companies to pay for public health campaigns.

Public nuisance law has a distinct purpose to protect rights and resources common to the general public.  Public rights enforced by nuisance suits traditionally include protecting lakes from pollution or public highways from blockages.  Policing the effects of products on individuals inside private homes is not the role of public nuisance tort suits.  Other legal rules protect individuals harmed when they use products.  Those legal rules have requirements of proof that the California plaintiffs could not meet and provide defenses that the plaintiffs could not overcome. 

Turning product manufacturers into lifetime guarantors of the use and maintenance of their products would dramatically increase prices and deter product research, development, and innovation.  Perhaps worse, California’s new rule would remove a strong economic incentive for consumers to use products safely and to carefully maintain them, likely leading to more accidents and injuries.  As to the millions of older homes in which there may still be lead paint, the EPA’s website states that “[i]f the paint is in good shape, the lead paint is usually not a problem.” Properly maintained, therefore, lead paint inside housing is not a public health hazard. 

Beyond rewriting tort law, the California decision is hostile to our First Amendment right of free speech and our constitutional right to due process of law.  In California’s unilateral estimation, a manufacturer “must have known” today’s dangers of interior lead paint when it advertised its brand of paint in the early 1900’s. But both federal and California governments then advocated the residential use of lead paint.  Scientific and medical knowledge changes over time.  Today many are concerned about too much fat in our diet, and we don’t encourage driving a car without seat belts.  Before World War II, when most lead paint was made and sold for interior use, lard was in common use and cars had no seat belts.  Before World War II, public health officials praised lead paint because it was washable and highly durable.  Penalizing a person for advertising a product having risks of which he or she was unaware and could not have known at the time is unfair and unconstitutional.

In the early 1900’s, advertising for lead paint met every standard for truthfulness. Paint manufacturers then promoted a lawful product for a common use and made no false claims. Allowing states to sue any company that once promoted a now-prohibited item would open a Pandora’s Box, sure to chill what businesses say.

If upheld, this kind of public nuisance lawsuit will itself become a national nuisance, harming shareholders, employees, and consumers of many productive companies. Expect to see manufacturers of products ranging from plastic packaging and cosmetics to power plant equipment and car engines in the crosshairs.

 California’s decision is dangerously out of step with fundamental principles of tort and constitutional law.  To protect American commerce, due process, and the First Amendment, the high court should take up this case.

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John S. Baker, Jr., is Professor Emeritus at Louisiana State University Law Center, and Michael I. Krauss is Professor of Law at the Antonin Scalia Law School at George Mason University.