BILL ANALYSIS
SB 67
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SENATE THIRD READING
SB 67 (Kopp)
As Amended April 16, 1997
Majority vote
SENATE VOTE : 28-9
JUDICIARY 11-3
Ayes: Escutia, Aroner, Caldera, Figueroa,
Keeley, Kuehl, Martinez, Ortiz,
Pacheco, Shelley, Sweeney
Nays: Morrow, Baugh, McClintock
SUMMARY : Repeals the current immunity conferred upon
manufacturers and sellers of tobacco products. Specifically, this
bill :
1) Deletes tobacco from the list of examples of products granted
immunity from liability and thereby provides that this provision no
longer exempts tobacco products from product liability actions.
2) Restores products liability law as it relates to tobacco products.
3) Declares that there is no statutory bar to, or immunity from,
tobacco-related personal injury, wrongful death, or other tort
claims by smokers or others, and that such claims shall be
determined on their merits.
EXISTING LAW :
1) Provides [Civil Code Section 1714.45, one of the provisions of the
comprehensive 1987 tort reform legislation, the so-called "napkin
deal"] that a manufacturer or seller of a product is not liable in
a products liability action if the product is inherently unsafe and
ordinary consumers know it is inherently unsafe. Lists tobacco as
one of the products barred from products liability claims.
2) Defines "product liability action" as any action for injury or
death caused by a product, except that the term does not include an
action based on a manufacturing defect or breach of an express
warranty.
3) States, in American Tobacco Co. v. Superior Court (1989) 208
Cal.App.3d 480, the First District Court of Appeal, that Civil Code
Section 1714.45 was poorly drafted and construed that the statute
provides an unconditional immunity to tobacco products.
4) In Richards v. Owens Corning, Inc. (1997) 14 Cal.4th 985, the
California Supreme Court construed Civil Code Section 1714.45 to
negate liability to voluntary users, emphasizing the voluntariness
of a smoker's use of the product. Thus under our Supreme Court's
most recent interpretation of Civil Code Section 1714.45, tobacco
companies are immune from tort liability against knowing and
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voluntary smokers.
FISCAL EFFECT : Unknown
COMMENTS : According to the author's office, this bill is intended
to restore product liability law as it relates to tobacco products
prior to the enactment of Civil Code Section 1714.45. In support
of the repeal, he states that:
Evidence has now become available showing tobacco companies may
have deliberately manipulated the level of nicotine, a powerfully
addictive substance, in tobacco products so as to create and
sustain addiction in smokers. In addition, evidence shows the
tobacco companies have systematically suppressed and concealed
material information and waged an aggressive campaign of
disinformation about the health consequences of tobacco use.
This bill would not appear to effect the traditional liability
defenses available to the tobacco companies in fighting actions
against them. Common law defenses, such as assumption of the
known risk, will continue to be available to tobacco manufacturers
and suppliers even in suits brought by public entities to recover
these costs.
The California Medical Association (CMA), one of the main
participants in the tort reform package of 1987, writes:
At the time, it was not anticipated that the California courts
would interpret this [section 1714.45] so broadly. Over the
last decade, we have also learned much regarding the addictive
nature of tobacco and the industry's intentional efforts to
mislead the public on the health effects of tobacco. This,
coupled with the courts' broad interpretation of the California
statute, has precipitated the need to change that statute and
remove tobacco's liability protections.
Opponents assert that Civil Code Section 1714.45 provides
manufacturers appropriate protection from lawsuits from
individuals who choose to use an inherently dangerous product.
Similar legislation, AB 1603 (Bustamante), pending in the Senate,
has no affect on suits by private parties. AB 1603 specifically
underscores the past and present viability of suits by public
entities, and the Attorney General on behalf of public entities.
The bill also clarifies that the state has always had the ability
to file these lawsuits.
SB 340 (Sher), pending in the Assembly, affects suits by private
plaintiffs (i.e., smokers and their families) as well as suits by
public entities. It would provide that section 1714.45 does not
apply to any action against a tobacco company, its
successor-in-interest, or a tobacco industry research organization
brought by specified individuals.
Analysis prepared by : Drew Liebert / ajud / (916) 445-4560
SB 67
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FN
031724