Chemical and Engineering News  [Printer-friendly version]
April 25, 2006


Chemical manufacturers say California court ruling could subject
industry to open-ended product liability

[Rachel's introduction: In California, chemical industry executives
are heading up a business coalition that is trying to evade liability
for harms caused by their products. Didn't their mothers teach them
that each of us is responsible for the consequences of our own

By Glenn Hess

A chemical-industry-led business coalition is urging the California
Supreme Court to review a lower court's decision that the industry
claims would create "limitless and open-ended liability for
manufacturers whose products are sold in California."

A ruling in March by the state's 6th Appellate District Court
"threatens to erode well-established doctrines" of California product
liability law and would allow plaintiffs to circumvent the statute of
limitations in such cases, the American Chemistry Council (ACC), the
National Association of Manufacturers (NAM), and other business groups
warn in a brief filed on April 24.

The opinion issued by the court of appeals regarding Santa Clara
County v. Atlantic Richfield Co. broadly holds that paint
manufacturers may be liable to various counties and cities suing under
a "public nuisance" theory based on health hazards posed by paint
applied before 1978, when manufacturers stopped putting lead in paint.

The coalition told the state Supreme Court that such a precedent would
drive manufacturers and their products out of California and
negatively impact commerce throughout the U.S.

"If this holding stands, it will open up an extraordinarily broad
right of action against anyone who even indirectly contributed to a
dangerous property condition including manufacturers of all types, as
well as builders and other contractors who directly or indirectly
participated in the use of potential irritants or other hazardous
materials on property," ACC Deputy General Counsel Donald D. Evans
told C&EN. "Because of its breadth, many members of ACC could be
adversely affected by this decision."

Quentin Riegel, NAM's vice president for litigation, says he is
concerned that lower courts have thus far permitted a public nuisance
claim in this case even though the lead pigment products in question
were used more than 20 years before the suit was filed and complied
with government standards at the time.

"California's high court needs to get involved here and restore some
common sense," Riegel remarks. "Otherwise, these nuisance suits --
even those against manufacturers whose chemicals comprise a mere
fraction of a given product -- will routinely be brought by public
agencies every time they decide that a purported 'public health
hazard' requires abatement.

"The thinking is: Why make property owners or taxpayers pay for clean-
up when we can make manufacturers pay?" Riegel notes. "But property
owners and taxpayers are also consumers, and manufacturers would have
no option but to pass the costs associated with increased liability on
to consumers."