ACA Statement on U.S. Supreme Court Denial for Cert in People v. ConAgra

Washington, D.C., Oct. 18, 2018 — The American Coatings Association (ACA) is disappointed that the U.S. Supreme Court rejected the petitions of three companies that sought review of the decision by the California Court of Appeal, Sixth Appellate District, in People v. ConAgra Grocery Prods. Co., 17 Cal. App. 5th 51 (2017) (“ConAgra”).

ACA believes the California Appellate decision is legally flawed and stands for bad public policy. Not only is this California ruling contrary to rulings upheld by the highest courts in other states, the California court went as far as basing the defendants’ liability today on the truthful promotion of legal products by a trade association in the prior century. Outside of California, courts have held that companies cannot be held retroactively liable for lawful conduct and truthful commercial speech.

The ConAgra ruling impinges upon the First Amendment right of freedom in commercial speech and the freedom of association. California’s courts may have a chilling effect on the willingness of companies to join and participate in trade associations and the many programs they support to the benefit of consumers and the public.

Furthermore, the abatement program contemplated as part of the California Appellate decision is contrary to recommendations of the U.S. Department of Housing and Urban Development and Environmental Protection Agency. The decision runs counter to federal, state and local laws that recognize that an intact, well-maintained painted surface is not a hazard. In addition, sound science and well-established public health and environmental policies state that lead-based paint cannot be viewed independent of evaluating all sources and pathways for lead exposure. Lead is ubiquitous in the environment from natural and many man-made sources other than paint. As exposure to lead cannot be eliminated, even when lead based paints are removed, proper policy focuses upon all likely sources and pathways contributing to elevated exposure, and upon practical and efficient remedies to reduce health risks from all sources.

It is unfortunate that the U.S. Supreme Court has forgone an opportunity to clarify the First Amendment rights of public and private companies and trade associations with regard to products that are compliant with current legal standards. The ConAgra ruling will only compound the problem presented by misapplied and distorted public nuisance theories of liability. It unfortunately may result in the expenditure of additional significant legal fees without any real benefit to consumers and those at risk from lead exposure. ACA is committed to working toward policies based on sound science, clear recognition of protections for truthful commercial speech, and tort liability based upon an identifiable causal relationship.

ACA is a voluntary, nonprofit trade association working to advance the needs of the paint and coatings industry and the professionals who work in it. ACA has consistently supported the development, implementation and enforcement of effective laws to prevent childhood lead poisoning. The association has a long history of partnering with the federal government, state and local governments and non-governmental organizations to develop fundamental prevention strategies. This includes work on presidential task forces under two administrations, State Attorneys General, and numerous city and state agencies focused on preventing elevated blood lead levels in children. ACA was also instrumental in the creation of CLEARCorps USA, a private-public partnership providing lead hazard reduction support services across the United States.

For more information:

Andy Doyle, ACA President & CEO
Robert Hecht, ACA Vice President & General Counsel

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