WERDEGAR, J., Concurring and Dissenting. I agree with the majority that the immunity conferred by Civil Code former section 1714.45 (Stats. 1987, ch. 1498, § 3, p. 5778) (the Immunity Statute) bars plaintiffs claims “where they allege no more than personal injury caused by dangers or risks inherent in the consumption of tobacco products such as cigarettes” (maj. opn., ante, at p. 867), insofar as that holding is limited, as the statute requires, to dangers or risks commonly known to the community and to conduct within the immunity period.1 I further agree that such immunity “does not extend to allegations that tobacco companies, in the manufacture of cigarettes, used additives that exposed smokers to dangers beyond those commonly known to be associated with cigarette smoking.” (Maj. opn., ante, at p. 861.)
I disagree with the majority that the Immunity Statute does not permit recovery based on plaintiffs allegations that “defendants ‘control[led] the nicotine content of their cigarettes ... by developing high-nicotine tobacco and blended tobacco’ ” (maj. opn., ante, at p. 865) and “ Tied about the addictive nature of smoking’ ” (id. at p. 866, quoting the operative first amended complaint). The majority rests here on the assertion that “[tjhese allegations do not suggest that the cigarettes plaintiff smoked exposed him to dangers other than those inherent in cigarette smoking” (ibid.; see also id. at p: 865), but that is beside the point. The allegations do suggest that the cigarettes plaintiff smoked exposed him to dangers beyond those commonly known to be associated with cigarette smoking. They therefore fall outside the Immunity Statute which, as the majority acknowledges, does not extend to such allegations. (Maj. opn., ante, at pp. 860-861.)2
The Immunity Statute provided in pertinent part that, “(a) In a product liability action, a manufacturer or seller shall not be liable if; [|] (1) The [871]product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community; and fl[] (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.” (Civ. Code, former § 1714.45, Stats. 1987, ch. 1498, § 3, pp. 5778-5779.)
As the majority acknowledges, in Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985 [60 Cal.Rptr.2d 103, 928 P.2d 1181] (Richards) we described the Immunity Statute as “based on the principle that ‘if a product is pure and unadulterated, its inherent or unavoidable danger, commonly known to the community which consumes it anyway, does not expose the seller to liability for resulting harm to a voluntary user.’ ” (Maj. opn., ante, at p. 862, quoting Richards, supra, 14 Cal.4th at p. 999.) Here, the crux of plaintiffs allegations respecting consumer knowledge at relevant times is that defendants’ products posed dangers other than those commonly known to be inherent in cigarette smoking. Thus, plaintiff alleges in detail that defendants carried out a campaign designed to deceive the public, plaintiff, the government, and others as to the health hazards of smoking, including the addictive nature of smoking, to conceal the results of their own research, and to misrepresent their actual role in manipulating the addictive properties of cigarettes via nicotine and other additives.
Plaintiff alleges that defendants conspired to deceive the government and the consuming public (including plaintiff himself) by a variety of means. For example, according to plaintiff, defendants established, funded, and publicized tobacco industry “research” bodies, which they touted as unbiased and trustworthy, and thereafter falsely represented to plaintiff and others that emerging questions about smoking and health would be truthfully answered by these bodies.* [3] Defendants also conspired to coordinate their responses to any statements by the Surgeon General or to other governmental action. In furtherance of that conspiracy, plaintiff alleges, defendants “concealed their actual knowledge concerning their own negative health and addiction research results and their manipulation and control of the nicotine content of their products to create and perpetuate smokers’ addiction to cigarettes . . . .” Before 1969 (when certain cigarette advertising was banned), defendants placed “deceptive, erroneous, misleading, and false advertisements” in [872]all media “designed to conceal the true health hazards and addictive nature of cigarettes and to lure new, especially youthful, users to replace the older ones who died.” After 1969, defendants “continued to disseminate deceptive, erroneous, misleading, and false statements concerning the state of the medical research concerning cigarettes and the diseases they cause, as well as the health hazards and addictive nature of cigarettes . . . .” At relevant times, plaintiff also alleges, defendants abused legal processes “to misdirect what purported to be objective scientific research to create favorable, and to suppress unfavorable, findings regarding the health consequences of smoking.”
Throughout the immunity period, according to plaintiff, defendants thus aimed “to intentionally frustrate the flow of information from the medical and scientific community to the general public on the health risks and addictive nature of cigarettes.” Defendants allegedly “controlled, and continue now to control nicotine content of their cigarettes . . . and engineer their cigarettes to control nicotine delivery to the smoker .... They then concealed their knowledge of the addictive nature of nicotine and of their manipulation of nicotine levels and delivery. Defendants have denied, and continue to deny publicly that nicotine is addictive, or that they attempt to or do achieve levels of nicotine in their products to create or sustain addiction.” Defendants’ well-funded and deceptive public relations campaign, including “literally hundreds of misrepresentations to plaintiff and others over the course of the last 40 years,” plaintiff alleges, “resulted in plaintiff being unaware” of “the extent to which smoking presented a serious hazard to his health, [or] that the nicotine therein would addict him to smoking . . . .” Indeed, as has been noted, “The tobacco industry has repeatedly told the public that nicotine is not addictive. Most specifically and most dramatically, at a congressional hearing on April 14, 1994, seven tobacco company CEOs—each in turn—stated that nicotine is not addictive.” (Glantz et al., The Cigarette Papers (1996) p. 100.)4
In short, plaintiff alleges, “[t]he addictive effect of nicotine has long been known and concealed by the defendants.” Despite their secret knowledge, defendants “intentionally conspired to mislead, deceive and confuse the government, and the public, including plaintiff, concerning the harmful and debilitating effects smoking has on the health of individuals, that nicotine in [873]cigarettes is a powerfully addictive substance, and that defendants intentionally manipulate levels of nicotine delivery in cigarettes to ensure that smokers remain addicted.” “One of the goals of the conspiracy,” plaintiff alleges, “was to create a false controversy regarding the health hazards of tobacco use and the addictive properties of nicotine in order to protect the market for cigarette sales and the profits of the tobacco industry” defendants. Consequently, plaintiff alleges, despite the availability of some governmental information respecting smoking and addiction, “[a]t times material, the ordinary consumer, including the plaintiff, did not in the exercise of ordinary diligence know of the likelihood of, the severity of, or the risks from” cigarettes.
Plaintiff thus plainly alleges more than “personal injury caused by dangers or risks inherent in the consumption of tobacco products such as cigarettes” (maj. opn., ante, at p. 867); he alleges that defendants secretly manipulated the nicotine content of cigarettes to enhance their addictive properties, thus subverting the “ordinary knowledge common to the community,” and materially misled the ordinary consumer about cigarettes’ addictiveness. (Cf. Civ. Code, former § 1714.45, subd. (a)(1), Stats. 1987, ch, 1498, § 3, p. 5778.)
It is a “fundamental premise” of the Immunity Statute that it negates liability only to “knowing and voluntary consumers” of covered products and then only when the conditions described in the statute—including the condition that “the product is known to be unsafe by the ordinary consumer”—obtain. (Richards, supra, 14 Cal.4th at p. 1000.) The majority not only acknowledges the point (maj. opn., ante, at p. 862), but relies on it to conclude that plaintiffs allegations concerning additives fall outside the Immunity Statute (see id. at p. 864). But there is no principled way to distinguish for these purposes between plaintiffs allegations that defendants secretly used additives and his allegations that defendants secretly manipulated and lied about the addictiveness of their product. Both activities allegedly “exposed smokers to dangers beyond those commonly known to be associated with cigarette smoking” (maj. opn., ante, at p. 861); therefore, both fall outside the Immunity Statute.
The majority apparently takes the view that the Legislature in the Immunity Statute declared the dangers of cigarettes to be commonly known as a matter of law. (See, e.g., maj. opn., ante, at pp. 861-862.) In support, the majority asserts that in Richards, supra, 14 Cal.4th at page 1000, we “explained” that the Legislature itself had concluded that tobacco products automatically qualify for immunity because there existed “ ‘general understanding of [their] inherent dangers.’ ” (Maj. opn., ante, at p. 866, italics added.) But that is not what the Immunity Statute says, nor is it the import of what we said in Richards.
[874]On its face, the Immunity Statute mentions tobacco (along with sugar, castor oil, alcohol, and butter) only conditionally, as a consumer product that might qualify for immunity if certain other, separately specified, requirements are met. Thus, tobacco appears in a list of examples of “common consumer product[s] intended for personal consumption” (Civ. Code, former § 1714.45, subd. (a)(2), Stats. 1987, ch. 1498, § 3, p. 5778) that qualify for immunity if, but only if, they meet the requirements set out in subdivision (a)(1), a separate part of the statute. Subdivision (a)(1) requires that any common consumer product proposed for immunity be “inherently unsafe and . . . known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community.” (Italics added.)
When noting in Richards that tobacco was specifically included in the Immunity Statute’s list of inherently unsafe “common consumer produces],” we also carefully noted, in fealty to the statute’s plain language, that the statute precludes liability only “under the circumstances described in the statute” (Richards, supra, 14 Cal.4th at p. 1000)—including, of course, the circumstance that “the product is known to be unsafe by the ordinary consumer” (Civ. Code, former § 1714.45, subd. (a)(1), Stats. 1987, ch. 1498, § 3, p. 5778).
Even if, as the majority asserts, and contrary to the statute’s plain language, the Legislature in enacting the Immunity Statute intended to deem, as a matter of law, that the consuming public had a “ ‘general understanding’ ” of tobacco’s inherent dangers (maj. opn., ante, at p. 866), any such intent logically could have encompassed at the most only those dangers of tobacco that had been publicly reported by the time the Immunity Statute was enacted in 1987. But in the period leading up to and at the outset of the immunity period, the predominant public document informing consumers about the addictiveness of tobacco was the Surgeon General’s 1964 Report on Smoking and Health (Surgeon Gen. Advisory Com. Rep., Smoking and Health (1964) (1964 Report)). Significantly, that report concluded that tobacco use “should be characterized as an habituation rather than an addiction.” (Id., ch. 4, p. 34, italics added.) The 1964 Report actually minimized the health hazards of nicotine in cigarettes, arguing that “the chronic toxicity of nicotine in quantities absorbed from smoking and other methods of tobacco use is very low and probably does not represent an important health hazard.” (Id., ch. 4, p. 32.)
Not until 1988, one year after the Immunity Statute was enacted, did the Surgeon General state unequivocally that cigarettes and other forms of tobacco are addicting and that nicotine is the drug in tobacco that causes [875]addiction. (See Centers for Disease Control and Prevention, Dept. Health & Human Services, The Health Consequences of Smoking: Nicotine Addiction (1988); see also www.cdc.gov/tobacco/sgrpage.htm [as of Aug. 5, 2002].) Moreover, that the delivery to Congress in 1988 of a medical report on tobacco’s addictiveness conferred on either the California Legislature or California consumers a general understanding of tobacco’s addictive properties does not necessarily follow. In any event, since neither the public nor the Legislature could possibly have known about dangers of tobacco use that were discovered or disclosed only after the Immunity Statute was enacted, the Legislature cannot have intended to bar suits based on such dangers.
Contrary to the majority’s implication, the addictive property of a substance is qualitatively different from mere “health risks” attendant upon its ingestion. (See maj. opn., ante, at p. 866, citing American Tobacco Co. v. Superior Court (1989) 208 Cal.App.3d 480 [255 Cal.Rptr. 280].) As discussed, plaintiff alleges that, as a consequence of defendants’ misleading conduct, he and other ordinary consumers did not during the immunity period appreciate the relevant risks, specifically the risk of addiction, involved in the use or consumption of tobacco. Moreover, once an individual is addicted to a substance, that individual arguably cannot reasonably be deemed a voluntary consumer. Consequently, American Tobacco, a Court of Appeal decision issued only at the outset of the immunity period and five years before the bombshell disclosures about tobacco companies’ behavior on which plaintiffs allegations largely are based (see Glantz et al., The Cigarette Papers, supra, p. xvii), is of no persuasive value.
The majority improperly denies plaintiff an opportunity to attempt to demonstrate the truth of his allegations respecting the consuming public’s knowledge at relevant times. (Maj. opn., ante, at pp. 865-866.) Plaintiffs allegations may or may not ultimately be provable, of course, but on review of a grant of demurrer their provability is not relevant since we assume them to be true. (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 946 [119 Cal.Rptr.2d 296, 45 P.3d 243]; see also General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1177 [32 Cal.Rptr.2d 1, 876 P.2d 487]; maj. opn., ante, at pp. 864-865.) Since the Immunity Statute cannot apply if plaintiffs allegations are true, the majority is mistaken in concluding as a matter of law that the Immunity Statute does not permit recovery based on these allegations. From that conclusion I respectfully dissent.
Moreno, J., concurred.
The Immunity Statute applied to certain conduct occurring from January 1, 1988, to December 31, 1997 (the immunity period), so that no product liability cause of action may be based on that conduct, regardless of when the users of covered products may have sustained or discovered injuries caused thereby. An amended version of Civil Code section 1714.45, enacted in 1997 (Stats. 1997, ch. 570, § 1), eliminated any immunity for tobacco manufacturers. (See Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 832 [40 Cal.Rptr.2d 123, 50 P.3d 751].)
I agree with the majority that on demurrer “an allegation that defendants increased the nicotine content of their cigarettes through blended or high-nicotine tobacco does not avoid the bar of the Immunity Statute [as part of a theory] that defendants exposed plaintiff to a risk other than those inherent in tobacco products.” (Maj. opn., ante, at p. 865.) As I explain more [871]fully below, however, such an allegation may avoid the bar of the Immunity Statute as part of a theory that defendants exposed plaintiff to a product not “known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community.” (Civ. Code, former § 1714.45, subd. (a)(1), Stats. 1987, ch. 1498, § 3, p. 5778.)
Plaintiff alleges activities by the Tobacco Institute, the Tobacco Industry Research Committee, the Tobacco Research Council, Tobacco Research—U.S.A., Inc., and the Council for Tobacco Research.
See generally Vladeck, Defending Courts: A Brief Rejoinder to Professors Fried and Rosenberg (2001) 31 Seton Hall L.Rev. 631, 635, wherein the author notes that in a recent book former federal Food and Drug Administration Commissioner David Kessler cites evidence obtained in litigation “to make his case that the tobacco industry deceived Congress, regulators, and the American people about the addictive nature of its products and its ability to manipulate the nicotine dose delivered by cigarettes to maintain addiction.” (See also Kessler, A Question of Intent: A Great American Battle With a Deadly Industry (2001).)