Naegele

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…

*860 Opinion

Tobacco-related illnesses are a leading cause of death in this state and worldwide, and these debilitating illnesses have imposed enormous costs on tobacco users, their families, and society. (See, e.g., Health & Saf. Code, § 104350, subd. (a).) Although the risk of illness and death from tobacco use has become increasingly well known in recent decades, tobacco consumption continues to be widespread, at least in part because tobacco contains nicotine, a substance the Surgeon General of the United States has determined to be addictive. (U.S. Surgeon Gen. Rep., The Health Consequences of Smoking: Nicotine Addiction (1988) [as of Aug. 5, 2002].) In 1987, the California Legislature enacted former section 1714.45 of California’s Civil Code 1 (which we here sometimes refer to as the Immunity Statute) stating that in a product liability action a court could not require a manufacturer or seller to pay damages for injuries caused by certain products, including tobacco products, that are inherently unsafe and known to be unsafe by the ordinary consumer of that product. (Stats. 1987, ch. 1498, § 3, p. 5778 (hereafter sometimes former section…

I agree with the majority that plaintiffs (see maj. opn., ante, at p. 861, fn. 3) causes of action alleging defendants manipulated the addictive properties of cigarettes by adding ammonia should survive demurrer. I write separately to express my concern that the majority has extended the immunity of Civil Code section 1714.45 (section 1714.45) only to products that are “pure and unadulterated” (maj. opn., ante, at pp. 862, 864-866), imposing a standard that is vague and misleading as well as potentially inconsistent with legislative intent.

Any product processed with one or more additives and thus no longer in its raw or natural state is arguably not “pure and unadulterated”; but that was *868 not how we used the term in Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985 [ 60 Cal.Rptr.2d 103 , 928 P.2d 1181 ] (Richards), ha. Richards, the court did not formulate a standard for determining the scope of section 1714.45 immunity but addressed the more fundamental question of the basis for statutory immunity. We explained 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…