BILL ANALYSIS                                                                                                                                                                                                    

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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,  
      Pacheco, Shelley, Sweeney

Nays: Morrow, Baugh, McClintock  

  SUMMARY  :  Repeals the current immunity conferred upon  
manufacturers and sellers of tobacco products in Civil Code  
section 1714.45.  Specifically,  this   bill  :  

1)  Deletes tobacco from the list of examples of products granted  
immunity from liability in Civil Code section 1714.45 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 prior to the enactment of Civil Code section 1714.45  
   in 1987.  

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.


1) Civil Code Section 1714.45 was one of the provisions of the  
   comprehensive 1987 tort reform legislation, the so-called  
   "napkin deal."  That section provides 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.  The provision lists  
   tobacco as one of the products barred from products liability  

2) The term "product liability action" is defined to mean 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) In  American Tobacco Co. v. Superior Court  (1989) 208 Cal.App.3d  
   480, the First District Court of Appeal stated that Civil Code  
   Section 1714.45 was poorly drafted and construed the statute to  
   provide an unconditional immunity to tobacco products.

4) Just this year, in  Richards v. Owens Corning, Inc.  (1997) 14  


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   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 voluntary smokers.
  FISCAL EFFECT  :  Unknown

  COMMENTS  :  According to the author's office, this bill is intended  
to restore products 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.

  Other Pending Legislation  :

   AB 1603 (Bustamante):  Unlike this bill and SB 340 (described  
   below), AB 1603 has no affect on suits by private parties.   
   That urgency legislation, passed by the Senate Judiciary  
   Committee on May 20, 1997, by a vote of 6-1, 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):  Like this bill, it would also amend Civil Code  
   section 1714.45, affecting suits by private plaintiffs (i.e.  


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   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.  SB 340 passed  
   the Senate Judiciary Committee, April 8, 1997, by a vote of  
   6-3, and is currently awaiting consideration on the Senate  

 Analysis prepared by  :  Drew Liebert / ajud / (916) 445-4560