Judges in California have ordered Sherwin-Williams, the paint company, to pay hundreds of millions of dollars for dangerous advertising. Some of their advertisements were for products that included lead paint. Lead paint was banned in 1977, and for good reason. So it's fair to say that a company shouldn't be advertising a product that's dangerous to the public.
That's not what's happening here, though.
Sherwin-Williams stopped making lead paint in 1943. That's 34 years before it was banned. The judges are basing charges against Sherwin-Williams on ads that ran in the Los Angeles Times and San Diego Union... in 1904. That's over a century ago.
It's good that companies be held accountable for dangerous or misleading advertising, but this feels like reaching. The scientific proof didn't exist yet. If the science didn't exist, there certainly weren't any laws regarding lead in paint. Remember when kids used to put plastic bags over their heads and play astronaut? We didn't know any better. So it would be a little ridiculous to start fining plastic companies now for something so retroactive.
Should we go back and sue car companies for advertising cars without seat belts?
A better example is seat belts. Cars had been around for a while before empirical evidence came out in favor of using the seat belts. Seat belts weren't even mandatory in cars until 1968. People weren't required to use them until even later. Should we go back and sue car companies for advertising cars without seat belts?
Dan Jaffe, executive vice president of government relations for the Association of National Advertisers, a trade group of marketers that filed a brief in support of Sherwin-Williams, said, "You can't demand companies to have clairvoyance. It's the precedent we're concerned about. We believe that what they're doing in regard to Sherwin-Williams certainly would apply to many other categories."
This boils down to the balance between Justice and Mercy, a concept I go over in my new book, Addicted to Outrage:
Justice meaning if you break the law or cut in line, you are punished, corrected… Justice is essential in society. Without it, civilizations break down. But it also must be balanced by mercy or the state devolves into a communistic, Stalinist state.