BILL ANALYSIS                                                                                                                                                                                                    



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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









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