First Amendment free speech for advertisers and marketers is in jeopardy.


Because if future scientific discoveries deem a product to contain a harmful substance, companies could be held liable for past promotion of the product, even though at the time the ads appeared, they were truthful and non-deceptive.

Let me explain…

In 2014 a California court ruled that Sherwin-Williams and 2 other companies were financially liable for creating a “public nuisance” – the presence of lead-based interior paint in homes – because they knew about the potential hazards of lead-based paint but promoted it anyway.

The ruling against Sherwin-Williams was based on a single ad that was run one time in 2 California newspapers … in 1904!

That’s not a misprint. The court ruled that Sherwin-Williams knew about the dangers of lead-based paint 114 years ago – long before science discovered its hazards that led to its being banned in 1978.

The 3 companies were ordered to pay over a billion dollars into a state fund that would be used to remove the health hazards posed by lead-based paint in the homes in 10 California cities.

An appeals court last year reduced the liability to cover only homes built after 1951 – which reduced the damages to between $409 million and $730 million.

The California Supreme Court declined to review the case, thus allowing the appeals court ruling to stand.

Sherwin-Williams is now appealing to the U.S. Supreme Court to review the rulings of the California courts and overturn them.

If this ruling is not overturned, the First Amendment will be rendered powerless to prevent states from claiming tort liability against truthful commercial speech when a court later determines that a lawful product is hazardous.

This is a good example of how judicial activists legislate their opinions and biases from the bench – instead of upholding the law.


Here are the rest of this week’s articles: