BILL ANALYSIS                                                                                                                                                                                                    



SENATE RULES COMMITTEE                             SB 67  
Office of Senate Floor Analyses
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                     UNFINISHED BUSINESS
                                                              
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Bill No:  SB 67
Author:   Kopp (I), et al
Amended:  8/11/97
Vote:     21
                                                              
                                                             
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  SENATE JUDICIARY COMMITTEE  :  6-1, 4/8/97
AYES:  Burton, Calderon, Leslie, Lockyer, O'Connell, Sher
NOES:  Wright
NOT VOTING:  Haynes, Lee

  SENATE FLOOR  :   28-9, 4/17/97
AYES:  Alpert, Ayala, Burton, Calderon, Costa, Dills,  
  Greene, Hayden, Hughes, Johannessen, Johnston, Karnette,  
  Kopp, Lee, Leslie, Lockyer, McPherson, O'Connell, Peace,  
  Polanco, Rainey, Rosenthal, Schiff, Sher, Solis,  
  Thompson, Vasconcellos, Watson
NOES:  Brulte, Haynes, Hurtt, Johnson, Kelley, Knight,  
  Maddy, Mountjoy, Wright
NOT VOTING:  Craven, Lewis, Monteith

  ASSEMBLY FLOOR  :   42-19, 7/3/97 - See last page for vote
                                                              
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SUBJECT  :    Repeal of immunity for tobacco products

  SOURCE  :     Author
                                                              
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DIGEST  :    This bill would repeal the current immunity  
conferred upon manufacturers and sellers of tobacco  
products, as specified in Civil Code Section 1714.45, for  
products liability.

  Assembly Amendments  :






1.Add co-authors.

2.Add legislative intent language relative to common law  
  rules.

3.Add language to ensure the bill does not chapter out any  
  provisions of AB 1603 (Bustamante).

4.Delete and recast, for clarification purposes, who is  
  exempt and who is excluded from that exemption.

  ANALYSIS  :    In 1987, the Legislature enacted Civil Code  
Section 1714.45 to provide an immunity to manufacturers and  
sellers in a products liability if:  (1) the product was  
"inherently unsafe" and commonly known to be unsafe; and  
(2) the product is a common consumer product intended for  
personal consumption, such as sugar, castor oil, alcohol,  
tobacco and butter, as identified in Comment (i) to Section  
402A of the Restatement (Second) of Torts. 

In  American Tobacco Co. v Superior Court  (1989) 208  
Cal.App.3d 480, the First District Court of Appeal stated  
that Section 1714.45 was "poorly drafted" and construed the  
statute to provide an unconditional immunity to tobacco  
products.  

More recently, in  Richards v. Owens Corning, Inc.  (1997) 14  
Cal.4th 985, the California Supreme Court construed Section  
1714.45 to "negate liability to voluntary users....In other  
words, under the conditions of Section 1714.45, a tobacco  
supplier simply commits no tort against knowing and  
voluntary smokers by making cigarettes available for their  
use.''   Richards  noted that a determination of the exact  
substantive scope of Section 1714.45 was not necessary for  
the case at hand and that it "takes no position of the  
correctness of the  American Tobacco  decision" construing  
section 1714.45 to provide a "nearly complete immunity."

Existing law provides an immunity to a manufacturer or  
seller in a product liability action if (1) the product is  
inherently unsafe and is known to be unsafe by the ordinary  
consumer with common community knowledge who consumes the  
product, and (2) the product is a common consumer product  
intended for personal consumption, such as sugar, castor  
oil, alcohol, tobacco, and butter, as identified in Comment  
(i) to Section 402A of the Restatement (Second) of Torts.   
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."

This bill would delete tobacco from the list of  
illustrative examples and provide that Section 1714.45 does  
not exempt the manufacture or sale of tobacco products by  
tobacco manufacturers and their successors in interest from  
product liability actions, but does not exempt the sale or  
distribution of tobacco products by any other person,  
including, but not limited to, retailers and distributors.

The bill provides that it is the intention of the  
Legislature in enacting the amendments to this section  
adopted at the 1997-98 Regular Session to declare that  
there exists no statutory bar to tobacco-related personal  
injury, wrongful death, or other tort claims by California  
smokers or others who have suffered or incurred injuries,  
damages, or costs arising from the promotion, marketing,  
sale, or consumption of tobacco products.  It is also the  
intention of the Legislature to clarify that such claims  
which were or are brought shall be determined on their  
merits, without the imposition of any claim of statutory  
bar or categorical defense.

The Legislature finds and declares that to the extent that  
the common law rules as to product liability actions with  
respect to tobacco were superseded by the version of  
Section 1714.45 of the Civil Code, this bill restores those  
common law rules.

  FISCAL EFFECT  :   Appropriation:  No   Fiscal Com.:  No    
Local:  No

  SUPPORT  :   (Verified 8/26/97)

California Medical Association
American Lung Association
American Heart Association
American Cancer Society
City of Los Angeles
Retired United Pilots Association
California Nurses Association
California Alliance for Consumer Protection
Americans for Nonsmokers' Rights
California Healthcare Association
Los Angeles County Board of Supervisors
California Grocers Association

  OPPOSITION  :  (Verified  8/26/97)

California Chamber of Commerce





Philip Morris:  R. J. Reynolds
Association for California Tort Reform
The Tobacco Institute
Cal-Tax

  ARGUMENTS IN SUPPORT  :    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  
writes, "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."

In support, the California Medical Association, one of the  
main participants in the tort liability reform package of  
1987, writes:  "At the time, it was not anticipated that  
the California courts would interpret this provision  
[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."

  ARGUMENTS IN OPPOSITION  :    Opponents assert that Civil  
Code Section 1714.45 provides manufacturers appropriate  
protection from lawsuits from individuals who choose to use  
an inherently dangerous product.  The California Chamber of  
Commerce writes:  "We do not believe that individuals  
should be able to engage in inherently dangerous activities  
and then sue someone for the harm which results from that  
activity.  The current law requires that individuals accept  
responsibility for the known consequences of their actions  
which we believe is sound policy."  

  The Tobacco Institute argues that, "this bill would make  
several unnecessary changes to the products liability  
statute enacted by the California Legislature in 1987.  The  
current statute limits, in clear and understandable terms,  
the liability of manufacturers and sellers of certain  
consumer products whose inherent dangers are common  
knowledge to the ordinary consumer.






"This bill would alter this common sense rule by  
eliminating tobacco from the illustrative list of products  
which are covered by the statute and by making other  
unnecessary changes.  In addition to removing tobacco from  
the illustrative list, SB 67 as amended on February 14,  
1997, explicitly states that the statute will not apply to  
tobacco liability actions."
  
ASSEMBLY FLOOR  :
AYES:  Alquist, Aroner, Bowen, Brown, Caldera, Cardenas,  
  Cunneen, Davis, Ducheny, Escutia, Figueroa, Firestone,  
  Floyd, Frusetta, Gallegos, Goldsmith, Havice, Hertzberg,  
  Honda, Keeley, Knox, Kuehl, Kuykendall, Lempert, Machado,  
  Martinez, Mazzoni, Migden, Napolitano, Ortiz, Pacheco,  
  Perata, Scott, Shelley, Strom-Martin, Sweeney, Thomson,  
  Torlakson, Villaraigosa, Washington, Wayne, Wildman
NOES:  Alby, Baldwin, Baugh, Bowler, Brewer, Granlund,  
  Kaloogian, Leonard, Margett, McClintock, Morrow, Olberg,  
  Oller, Poochigian, Pringle, Richter, Runner, Takasugi,  
  Woods
NOT VOTING:  Ackerman, Aguiar, Ashburn, Baca, Battin,  
  Bordonaro, Campbell, Cardoza, House, Leach, Miller,  
  Morrissey, Murray, Papan, Prenter, Thompson, Vincent,  
  Wright, Bustamante
  
  RJG:sl  8/26/97  Senate Floor Analyses
              SUPPORT/OPPOSITION:  SEE ABOVE
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