NL, Sherwin-Williams, and ConAgra’s predecessor, Fuller, “were among the handful of companies that manufactured white lead carbonate pigments during the 20th century, and all three of them used white lead carbonate pigment to make paint. NL, [Sherwin-Williams], and Fuller were all leaders in the lead paint industry, and they knew at that time that lead dust was poisonous. They were also aware that lead paint ‘powders and chalks’ ‘soon after it is applied’ and routinely produces lead dust after a couple of years. [¶] . . . NL, [Sherwin-Williams], and Fuller were making white lead carbonate pigment, using it in their paints, and promoting white lead pigment in paint for use on and in residential homes.” (People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51, 70.)
The Manufacturers’ Leading Role in Manufacturing and Selling Lead Paint
“[Sherwin-Williams] began manufacturing paints containing white lead carbonate pigments in 1880. . . . In 1910, [Sherwin-Williams] bought a lead mine, which it utilized to manufacture white lead carbonate pigment from 1910 to 1947 for use in its own paints. [Sherwin-Williams] stopped manufacturing white lead carbonate in 1947, but it continued to make lead paint until 1958. [Sherwin-Williams] had plants in Emeryville and later in Los Angeles that manufactured paint containing white lead carbonate. [Sherwin-Williams] continued to sell lead paint until 1972. [Sherwin-Williams] removed all lead from its residential paints by the end of 1972.” (People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51, 71.) “[Sherwin-Williams] proclaimed itself in 1901 to be ‘the largest manufacturer of Prepared Paint in the world.’ In 1934, [Sherwin-Williams] called itself the ‘World’s Largest Paint Producer’ and identified itself as ‘one of the country’s largest producers of White Lead.’” (Id. at p. 87.)
“NL manufactured white lead carbonate pigment from 1891 to 1978, and it had manufacturing facilities in San Francisco and Los Angeles that manufactured white lead carbonate pigments in California between 1900 and 1972. It sold those pigments to California paint manufacturers, used them in its own paint products sold in California, and advertised and promoted paint products containing those pigments for residential use within the 10 jurisdictions during that same period.” (Id. at p. 71.) “NL took pride in its position as a leader in the white lead industry since 1891. In 1912, NL made more than 20 different brands of Dutch Boy White Lead for painting, the brand that it had adopted in 1907.” (Id. at p. 87.)
“ConAgra's predecessor, Fuller, manufactured white lead carbonate pigment from 1894 until at least 1958. Fuller manufactured white lead carbonate pigment at its San Francisco factory until 1898, when it moved its factory to South San Francisco. At this factory, Fuller refined white lead carbonate and was a ‘major producer’ of lead paint. Fuller also had a plant in Los Angeles. Fuller's lead paints were sold at its own stores and by independent dealers in all 10 jurisdictions between 1894 and 1961.” (Id. at p. 71.) By the late 19th century, Fuller was the leading seller of white lead on the West Coast and was ‘one of the strongest concerns dealing in paints, oils and glass in the United States.’” (Id. at p. 87.)
The Manufacturers’ Knowledge of the Dangers of Lead
By the early 1900s, the hazards of lead paint “were well known in the paint industry.” (People v. ConAgra Grocery Products Company (2017) 17 Cal.App.5th 51, 87.) There is abundant evidence that each of the Manufacturers knew about lead paint’s hazards and that they learned about such hazards through their trade associations.
The Sherwin-Williams Company knew by the turn of the 20th century, if not earlier, that lead was a deadly poison and that deteriorated lead paint, in particular, posed a serious health threat. For example, an article published in 1900 in Sherwin-Williams’ in-house publication, The Chameleon, acknowledged the many dangers of lead paint. It stated: “A familiar characteristic of white lead is its tendency to crumble from the surface, popularly known as chalking”; “It is also familiarly known that white lead is a deadly cumulative poison”; and “This noxious quality becomes serious in a paint that disintegrates and is blown about by the wind.” (Id. at p. 71; click here for a copy of the article.) When asked whether Sherwin-Williams knew, before 1910, that lead paint could cause lead poisoning, Sherwin-Williams’ own expert at trial admitted that “[t]he hazards of . . . lead paints were widely understood for a long time” and that the “hazards [of lead paint] to workers, in particular, were well-known and reflected in Sherwin-Williams’ documents.”
ConAgra’s predecessor, Fuller, “knew that lead dust was poisonous.” (People v. ConAgra Grocery Products, supra, 17 Cal.App.5th at p. 71.) In 1903, an employee in Fuller’s white lead manufacturing factory in San Mateo County “became lead poisoned, and thereby paralyzed on the right side of his body, including his right arm and leg, and seriously injured internally.” (Pigeon v. W.P. Fuller & Co. (1909) 156 Cal. 691, 694.) In the employee’s lawsuit against Fuller, “[t]here was abundant testimony tending to show that . . . the manufacture of white lead . . . was dangerous to those assisting in the work; the danger arising from the inhalation of fumes and vapor . . . and of particles of dust coming from the metal after it had been corroded in the process of converting it to white lead.” (Id. at p. 702.) The employee prevailed at trial, and the judgment was upheld on appeal. (Id. at pp. 694, 703.) “In 1919, an article about Fuller's South San Francisco plant noted that lead dust is poisonous.” (ConAgra Grocery Products Co., supra, 17 Cal.App.5th at p. 71.) And one of ConAgra’s own employees admitted that, during the time that ConAgra was producing lead paint and he was developing paint formulas for the company, he knew that white lead was toxic, that lead paint chalked, and that the lead dust from the paint could be ingested. (People v. Atlantic Richfield Co., 2014 WL 1385823 at *16; 27:20-24.)
NL also stayed abreast of the medical literature concerning lead poisoning. “NL employed medical doctors who were well aware of the hazards of lead paint and tracked the medical literature on this subject.” (People v. Atlantic Richfield Co., 2014 WL 1385823 at *17; 29:11-13.) NL's 1912 annual report acknowledged that lead dust was a ‘danger to the health’ of workers exposed to it in the making of white lead. By the mid to late 1920s, NL knew that children who chewed on things painted with lead paint could get lead poisoning and die from it.” (ConAgra Grocery Products Co., supra, 17 Cal.App.5th at p. 71.)
In addition to the foregoing, the Lead Industries Association—a trade association whose members included each of the Manufacturers at varying times—“provided its members with information about lead hazards and lead poisoning that was available in medical and scientific literature at the time.” (Id. at p. 72.) For example, “NL was present at a 1930 LIA board of directors meeting at which a 1930 article about lead poisoning of babies and children from chewing lead paint off of cribs was discussed. The article, which ran in the U.S. Daily, a publication ‘Presenting the Official News’ of the government, stated that lead poisoning from ‘chewing paint from toys, cradles, and woodwork’ was ‘a more frequent occurrence’ than previously thought and noted that even a small amount of lead could kill a child. The article also noted that ‘[c]hildren are very susceptible to lead’ and that the ‘most common sources of lead poisoning in children are paint on various objects within reach of a child and lead pipes ...’ (Id. at p. 72.)
“At a 1935 LIA annual meeting, it was acknowledged that . . . there were thousands of cases [of childhood lead poisoning] annually.” (Ibid.)
And a 1937 LIA conference on lead poisoning discussed industrial lead poisoning and childhood lead poisoning—including the near impossibility of getting rid of lead once it had been ingested by a child. (Ibid.) NL, Sherwin-Williams, and other attendees were asked to keep the information from the conference confidential to avoid unfavorable publicity. (Ibid.) Although Fuller did not attend the conference, it received a transcript of the conference. (Ibid.; click here for a copy of the conference report.)
The Manufacturers’ Knowledge of Lead Paint’s Disproportionate Impact on Low-Income Children and Children of Color
For decades, the Manufacturers were well aware that their products disproportionately harmed low-income and minority children, yet they continued to produce lead paint and promote it for use in homes.
The report from the LIA’s 1937 conference on lead poisoning stated, “It is known that certain races are susceptible to lead. Negros are very susceptible to lead as compared to whites. Women and children are susceptible as compared to men.” (Click here for a copy of the report.)
A report prepared for the LIA on childhood lead poisoning cases from Baltimore in 1948 and 1949 found that 48 of the 60 cases involved minority children and that “the majority of the cases . . . were children who came from the low social and economic group of the community.” Case after case described children with a history of eating plaster or paint and follow-up testing that confirmed lead in the paint. (Click here for a copy of the report.)
In 1955, the LIA’s Director of Health and Safety wrote to a professor in England, “With us, childhood lead poisoning is common enough to constitute perhaps my major ‘headache,’ this being in part due to the very poor prognosis in many such cases, and also to the fact that the only real remedy lies in educating a relatively ineducable category of parents. It is mainly a slum problem with us ….” The author of the letter went on to note that the reported number of childhood lead poisoning cases in Britain seemed too low given that there was “no monopoly on either substandard housing or substandard mentalities in the USA.” (Click here for a copy of the letter.)
In 1956, the LIA’s Director of Helath and Safety wrote:
Aside from the kids that are poisoned (and we still don’t know how many there are), it’s a very serious problem from the viewpoint of adverse publicity. The basic solution is to get rid of our slums, but even Uncle Sam can’t seem to swing that one. Next in importance is to educate the parents, but most of the cases are in Negro and Puerto Rican families, and how does one tackle that job?
(Click here for a copy of the letter.)
Similarly, in 1957, the minutes from an annual LIA meeting reported the following:
As the major source of trouble is the flaking of lead paint in the ancient slum dwellings of our older cities, the problem of lead poisoning in children will be with us for as long as there are slums, and because of the high death rate, the frequency of permanent brain damage in the survivors, and the intelligence level of the slum parents, it seems destined to remain as important and as difficult as any with which we have to deal.
(Click here for a copy of the document.)