Whether the First Amendment permits imposing tort liability for truthfully promoting a lawful product later deemed hazardous

QUESTIONS PRESENTED The California courts held petitioner The Sherwin-Williams Company, together with two other companies, jointly and severally liable for creating a public nuisance, because it advertised lead paint for thenlawful uses over 70 years ago. The California courts have declared that the presence of interior residential lead paint is a public nuisance. Although lead paint was lawful to use in residential interiors at the time of promotion, the courts deemed that Sherwin-Williams’ decades-earlier truthful promotions were “misleading,” because they “necessarily implied that lead paint was safe.” The courts, accordingly, held that Sherwin-Williams’ advertising, though factually truthful, was not entitled to First Amendment protections for freedom of speech and freedom of association and applied a new standard of public nuisance liability premised only on product promotion to hold Sherwin-Williams liable. The courts did not require any evidence that anyone had relied on Sherwin-Williams’ promotions to use lead paint inside residences or any evidence that Sherwin-Williams’ products remained in any residence. As a result, the courts held Sherwin Williams liable to pay to inspect and abate more than a million privately-owned houses and apartment buildings in ten of California’s largest cities and counties. ii The California courts imposed this massive liability solely because (1) in 1904, when lead paint was legal, Sherwin-Williams ran an advertisement once in two California newspapers promoting a line of paints that included exterior, but not interior, lead paint, and (2) between 1937 and 1941, again when lead paint was legal, Sherwin-Williams contributed a total of $5,000 to a trade association that it used to promote “better paint,” including lead paint. The petition presents two questions: 1. In conflict with decisions of this Court and the Third Circuit, does the First Amendment permit California to impose tort liability for truthfully promoting a lawful product that it finds to be hazardous in some uses? 2. Does the Due Process Clause allow a state to impose retroactive and grossly disproportionate public nuisance liability to inspect and abate millions of residences based on decades-old promotions without evidence that consumers relied on those promotions or that petitioner’s lead paint is in any residence? iii PARTIES TO PROCEEDINGS BELOW The Sherwin-Williams Company is the petitioner here and was below. ConAgra Grocery Products Company and NL Industries, Inc. are petitioners and were The People of the State of California, acting through Santa Clara County Counsel, San Francisco City Attorney, Alameda County Counsel, Los Angeles County Counsel, Monterey County Counsel, Oakland City Attorney, San Diego City Attorney, San Mateo County Counsel, Solano County Counsel, and Ventura County Counsel, are the respondents and were