People of the State of California v. ConAgra Grocery Products Company

From 2010-2014, the last 5 years for which data is available, nearly 75,000 children in California tested positive for lead poisoning.[1] The total number of lead-poisoned children in California is unknown, because only a small percentage of children are tested for lead poisoning. Even very low blood lead concentrations “may be associated with decreased intelligence in children, behavioral difficulties, and learning problems.”[2]

During the same time period, nearly 39,000 children tested positive for lead poisoning in the ten local jurisdictions that will benefit from the decision in People v. ConAgra Grocery Products Company. Below is a breakdown by jurisdiction and year:

Lead-Poisoned Children by Local Health Jurisdiction and Year[3]

[1] California Childhood Lead Poisoning Prevention Bureau, Blood Lead Data, available at: www.cdph.ca.gov/Programs/CCDPHP/DEODC/CLPPB/Pages/data.aspx. Although there is no level of lead exposure known to be safe, the California Childhood Lead Poisoning Prevention Bureau reports lead poisoning statistics in the following categories: children with a blood lead level below 4.5 μg/dL, from 4.5 μg/dL to less than 9.5 μg/dL, and 9.5 μg/dL or higher. 

[2] World Health Organization fact sheet, “Lead poisoning and health” (Aug. 2017), available at: www.who.int/mediacentre/factsheets/fs379/en/.

[3] California Childhood Lead Poisoning Prevention Bureau, Blood Lead Data. Data presented is for children under age 21 with a blood lead level of 4.5 μg/dL or higher.

The ten jurisdictions that held Sherwin-Williams, ConAgra Grocery Products, and NL Industries accountable in People v. ConAgra Grocery Products Company are estimated to have more than 4.6 million units of pre-1980 housing and more than 1.5 million units of pre-1950 housing.  Pre-1950 housing tends to have significantly higher levels of lead in paint than homes built post-1950.

(Source: U.S. Census Bureau’s 2012-2016 American Community Survey 5-Year Estimates, Selected Housing Characteristics)

[1] Not including Oakland.

The judgment in this case requires the Manufacturers to pay into a fund that will be used to abate the public nuisance that the Manufacturers created. That fund will be administered by a third party who will be overseen by the Superior Court of Santa Clara County. Each of the ten jurisdictions that participated in this lawsuit will be able to apply to the administrator of the fund to obtain money for their jurisdictions to (1) inspect for, and abate, lead paint and lead-contaminated dust from the interiors of pre-1951 homes and lead-contaminated soil around pre-1951 homes, (2) remediate any structural deficiencies in the homes that would cause the lead control measures to fail, and (3) conduct public education and outreach related to the program. (For more information, click here for a copy of the court’s judgment.)

Participation in the inspection and abatement programs that will be administered in the ten jurisdictions will be free and voluntary for property owners. Properties that are inspected and abated pursuant to the judgment will be included in a database so that members of the public will know what housing has been abated.

Manufacturers have attempted to sway the courts and public opinion by arguing that the judgment in this case declares every property with lead paint to be a public nuisance, which will cause housing values to plummet and result in an array of negative consequences for homeowners. This is simply untrue. The judgment in this case did not identify any individual property with lead paint to be a public nuisance. Instead, the courts have held that the presence of lead paint in pre-1951 homes in the ten jurisdictions constitute a single public nuisance, negatively affecting the availability of safe housing for residents of those communities. There has been no negative effect on the housing market since the Superior Court issued its decision in 2014. Additionally, under longstanding, existing state law, all homes built before 1978 are already presumed to contain lead paint. (17 Cal. Code Regs., § 35043.) Property owners are already required to disclose any known lead paint hazards when they sell their properties and to provide purchasers and renters with information about protecting oneself from lead. Thus, housing values already account for the presumption that pre-1978 homes contain lead.

The World Health Organization provides the following information on lead poisoning:

Key facts

There is no known level of lead exposure that is considered safe.

Lead is a cumulative toxicant that affects multiple body systems and is particularly harmful to young children.

Lead in the body is distributed to the brain, liver, kidney and bones. It is stored in the teeth and bones, where it accumulates over time. Human exposure is usually assessed through the measurement of lead in blood.

Lead in bone is released into blood during pregnancy and becomes a source of exposure to a developing fetus.

Lead exposure is preventable.  

Young children are particularly vulnerable to the toxic effects of lead and can suffer profound and permanent adverse health effects, particularly affecting the development of the brain and nervous system. Lead also causes long-term harm in adults, including increased risk of high blood pressure and kidney damage. Exposure of pregnant women to high levels of lead can cause miscarriage, stillbirth, premature birth and low birth weight, as well as minor malformations.…

Young children are particularly vulnerable because they absorb 4–5 times as much ingested lead as adults from a given source. Moreover, children’s innate curiosity and their age-appropriate hand-to-mouth behaviour result in their mouthing and swallowing lead-containing or lead-coated objects, such as contaminated soil or dust and flakes from decaying lead-containing paint.

Once lead enters the body, it is distributed to organs such as the brain, kidneys, liver and bones. The body stores lead in the teeth and bones where it accumulates over time. Lead stored in bone may be remobilized into the blood during pregnancy, thus exposing the fetus. Undernourished children are more susceptible to lead because their bodies absorb more lead if other nutrients, such as calcium, are lacking. Children at highest risk are the very young (including the developing fetus) and the impoverished.

Health effects of lead poisoning on children  

Lead can have serious consequences for the health of children. At high levels of exposure, lead attacks the brain and central nervous system to cause coma, convulsions and even death. Children who survive severe lead poisoning may be left with mental retardation and behavioural disorders. At lower levels of exposure that cause no obvious symptoms, and that previously were considered safe, lead is now known to produce a spectrum of injury across multiple body systems. In particular lead can affect children’s brain development resulting in reduced intelligence quotient (IQ), behavioural changes such as reduced attention span and increased antisocial behaviour, and reduced educational attainment. Lead exposure also causes anaemia, hypertension, renal impairment, immunotoxicity and toxicity to the reproductive organs. The neurological and behavioural effects of lead are believed to be irreversible.

There is no known safe blood lead concentration. But it is known that, as lead exposure increases, the range and severity of symptoms and effects also increases. Even blood lead concentrations as low as 5 μg/dL, once thought to be a “safe level”, may be associated with decreased intelligence in children, behavioural difficulties, and learning problems.

Attachments

• World Health Organization’s fact sheet, “Lead poisoning and health” (pdf)
• U.S. Department of Health and Human Services’ Agency for Toxic Substances & Disease Registry’s educational resource entitled “Lead Toxicity: What Are Possible Health Effects from Lead Exposure? (pdf)

In December 2017—a month after the landmark decision in People v. ConAgra Grocery Products Company— the California Attorney General received a proposed initiative to invalidate the judgment in this lawsuit and to relieve The Sherwin-Williams Company, ConAgra Grocery Products Company, and NL Industries, Inc. (“Manufacturers”) of their responsibility for abating lead paint in the ten cities and counties. 

The initiative proposed issuance of state general obligation bonds to remediate structural and environmental hazards (including lead, mold, asbestos, and other hazards) for private residences, schools, assisted living and senior housing facilities. 

The initiative also contained a provision to invalidate the judgment in People v. ConAgra. That provision of the initiative declared that “lead-based paint on or in private or public residential properties, whether considered individually, collectively, or in the aggregate, is not a public nuisance.” The initiative went on to state that this “shall apply to all cases pending on, pending on appeal on, or filed after, November 1, 2017, and to any injunctions, judgments, or other remedies issued in those cases.” This would have shifted responsibility for remediating lead paint from the Manufacturers to taxpayers. (Click here for a copy of the proposed initiative submitted to the Attorney General’s Office.​)

On the date that the initiative was introduced, Manufacturers established a committee in support of the initiative: Californians for Safe and Affordable Housing, Sponsored by Manufacturing Companies. Sherwin-Williams, ConAgra, and NL Industries are each listed as committee sponsors. (Click here for a copy of the papers filed with the Secretary of State to establish the committee.)

The Attorney General issued the following official title and summary of the ballot initiative:

Eliminates Certain Liability for Lead-Paint Manufacturers. Authorizes Bonds to Fund Structural and Environmental Remediation Projects. Initiative Statute.

Declares that lead paint in homes is not a public nuisance. Eliminates liability of lead-paint manufacturers—in cases pending on or after November 1, 2017—for claims that lead paint in homes causes a public nuisance. Authorizes $2 billion in state general obligation bonds to fund grants for certain structural and environmental remediation projects as follows: $1.5 billion for certain residential units; $400 million for schools; and $100 million for senior housing facilities. Appropriates money from the General Fund to repay bonds. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: State General Fund costs of $3.9 billion to pay off principal ($2 billion) and interest ($1.9 billion) on bonds over a period of 35 years. Annual payments would average $110 million, with payments lower in the initial and final few years and somewhat higher in the intervening years. Reduction of several hundred million dollars or more in funding for local programs to clean up lead-based paint in homes.

(Click here for the Attorney General’s official title and summary for the initiative.) The Fiscal Impact Effect Report from the Legislative Analyst’s Office explained the initiative in the context of this lawsuit and concluded that the initiative would result in the “[r]eduction of several hundred million dollars or more in funding for local programs to clean up lead-based paint in homes.” (Click here for the LAO’s report.)

Following extensive criticism of the initiative by members of the California Legislature and newspapers across the State, the initiative was withdrawn from the November 2018 ballot.

In 2000, the County of Santa Clara filed this landmark case to hold former lead paint manufacturers responsible for promoting lead paint for use in homes despite their knowledge that the product was highly toxic. Young children are especially vulnerable to lead poisoning, and lead paint is the predominant source of lead poisoning. There is no known level of exposure to lead that is considered safe, and the effects of lead poisoning are irreversible. Low-level exposure can result in reduced IQ and attention problems, and high-level exposure can result in coma, convulsions, and death.

Nine other California cities and counties joined the lawsuit, with the County of Santa Clara taking the lead role in prosecuting the case on behalf of the People of the State of California (“People”). The other cities and counties involved are the City and County of San Francisco, the Cities of Oakland and San Diego, and the Counties of Alameda, Los Angeles, Monterey, San Mateo, Solano, and Ventura. (Click here for a copy of the complaint from this case.)

After a six-week trial in 2013, the Santa Clara County Superior Court issued a 111-page decision in 2014, holding The Sherwin-Williams Company, NL Industries, Inc. and ConAgra Grocery Products Company (collectively, “Manufacturers”) accountable for creating a public nuisance in the ten cities and counties involved in the lawsuit. The public nuisance created by these Manufacturers was the collective presence of lead paint in the interiors of homes in the ten cities and counties.[1] The Manufacturers were ordered to pay $1.15 billion to fund (1) inspection for, and abatement of, lead paint and lead-contaminated dust from the interiors of homes and lead-contaminated soil around homes built in 1980 or earlier in the ten cities and counties, (2) remediation of any structural deficiencies in the homes that would cause the lead control measures to fail, and (3) public education and outreach necessary for the program. The decision designated the ten cities and counties to oversee the lead inspection and abatement programs in their respective jurisdictions. The decision further provided that property owners’ participation would be entirely voluntary, and any funds unspent after four years would revert back to the Manufacturers. (Click here for a copy of the Superior Court’s final Statement of Decision and Judgment from this case.)

In November 2017, the Court of Appeal issued a highly-detailed and lengthy decision upholding the Superior Court’s determination that the Manufacturers were liable for creating a public nuisance in the ten cities and counties. (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51; click here for a copy of the Court of Appeal’s decision.) However, the Court of Appeal limited their responsibility to homes built before 1951 in the ten jurisdictions.

In February 2018, the California Supreme Court rejected the Manufacturers’ petition for review of the Court of Appeal’s decision. In October 2018, the U.S. Supreme Court also rejected the Manufacturers' petition for review. (Click here for a copy of Santa Clara County Counsel James R. Williams' statement.) In the meantime, the Santa Clara County Superior Court has decided that Manufacturers must pay $409 million for the inspection and abatement of pre-1951 homes. (Click here for a copy of the court's order.) The Superior Court must now decide on a receiver to administer the fund and distribute the monies to the ten cities and counties.

[1] Notably, the court did not decide that lead paint on any individual property is a public nuisance, and thus, no individual homes were declared a public nuisance.

Below are some links with more information:

• United States Environmental Protection Agency, Lead webpage: https://www.epa.gov/lead
• California Department of Public Health, Childhood Lead Poisoning Prevention Branch website: https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/CLPPB/Pages/CLPPBhome.aspx
• Centers for Disease Control and Prevention, Lead webpage, “Information for Parents”: https://www.cdc.gov/nceh/lead/parents.htm
• Centers for Disease Control and Prevention, Lead webpage, “Prevention Tips”: https://www.cdc.gov/nceh/lead/tips.htm
• Centers for Disease Control and Prevention, Lead webpage, “Childhood Lead Poisoning Publications”: https://www.cdc.gov/nceh/lead/publications/default.htm

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.) 

Lead paint is the predominant source of childhood lead poisoning.[1] Although lead paint was banned for residential use in 1978, it remains present in millions of homes in California. In California, all homes built before 1978 are presumed to contain lead. (17 Cal. Code Regs., § 35043.)

Lead paint, like all other paint, inevitably deteriorates: it flakes, chips, and turns to dust, and that contaminates the air, soil, floors and other surfaces in the home. This is particularly true of lead paint on windows, doors, and other friction surfaces. Deteriorated lead paint is particularly dangerous because it is easily ingested by young children through exposure to common household dust in homes that contain lead paint.

The amount of lead necessary to cause lead poisoning is alarmingly low. During the trial in this case, an expert toxicologist testified that ingestion of a paint chip the size of a period at the end of a sentence can cause an elevated blood lead level of 20 µg/dL, causing permanent brain damage in a young child. The National Center for Healthy Housing also provides the following example:

[I]magine the amount of sugar in a 1-gram packet. The same amount of lead particles evenly spread over 100 rooms, each measuring 10 feet by 10 feet, would leave dust levels of 100 µg/ft2, an amount of lead that is more than twice the federal standard (40 µg/ft2) for a hazardous level of lead on floors.

(National Center for Healthy Housing webpage, “Lead,” available at: nchh.org/information-and-evidence/learn-about-healthy-housing/health-hazards-prevention-and-solutions/lead/.)

Experts agree that “[t]he best way to end childhood lead poisoning is to prevent, control or eliminate lead exposures.” (See Centers for Disease Control and Prevention Response to Advisory Committee on Childhood Lead Poisoning Prevention Recommendations, dated June 7, 2012.) Testing for and abating lead paint, however, is extremely costly for property owners, because the work must be performed by licensed individuals in accordance with strict regulations.

[1] See, e.g., Centers for Disease Control and Prevention webpage, Prevention Tips [on Lead Exposure], available at: www.cdc.gov/nceh/lead/tips.htm.