The opinion
BROWN, J., Concurring.
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. 1
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 the seller to liability for resulting harm to a voluntary user.” (Richards, at p. 999, italics omitted.) As the analysis in Richards makes clear, this reference to “pure and unadulterated” must be read with reference to comment i of section 402A of the Restatement Second of Torts (Restatement), from which section 1714.45 “draws its express inspiration . . . .” (Richards, at p. 999; see § 1714.45, subd. (a)(2).)
Comment i qualifies the general rule of liability for unreasonably dangerous products: “Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by ‘unreasonably dangerous’ in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fuel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.” (Rest., § 402A, com. i, pp. 352-353.)
From this explanation, we can reasonably infer that the Legislature did not extend section 1714.45 immunity to products that are contaminated, perhaps through improper storage or transport, or contain some ingredient making them unfit for ordinary consumption. Such contamination, however, is not the same as processing a “pure and unadulterated” product—as by incorporating additives—to make it more palatable or appealing to the consumer.
*869 In today’s high-technology economy, such adulteration is common practice—even in common consumer products one might reasonably assume are “pure and unadulterated” (see, e.g., 7 C.F.R. § 205.605 (2002) [listing several dozen nonsynthetic and synthetic substances that “may be used as ingredients in or on processed products labeled as ‘organic’ ”])-—but it does not result in products that would fall outside the immunity of section 1714.45. For example, most wines do not contain “pure and unadulterated” grapes but have sulfites added to discourage bacterial growth as the wine ferments. Sulfur-based preservatives prevent discoloration in the drying of “pure and unadulterated” fruits such as apricots. Nitrites and nitrates preserve flavor and delay the development of toxins when used to cure “pure and unadulterated” meats for bacon and ham. By the same reasoning, consumers generally do not buy unprocessed tobacco but cigarettes, which may contain nontobacco additives that make them more attractive to the consumer. That processing does not necessarily make the tobacco adulterated, i.e., contaminated, even if the product is no longer “pure and unadulterated.” Thus, to the extent such cigarettes meet consumer expectations, they would not be unreasonably dangerous as contemplated by comment i and should come within the statutory immunity.
This conclusion is fully consonant with our reasoning in Richards , irrespective of the passing reference to a product that is “pure and unadulterated.” As the court went on to explain, “Like comment i, section 1714.45 negates ‘liability]’ to voluntary users for the mere manufacture or sale of ‘common consumer produces] intended for personal consumption,’ . . . which are ‘inherently unsafe’ and are understood to be so by ‘ordinary knowledge common to the community,’ but which are nonetheless consumed with such ordinary knowledge. Like the Restatement, the statute thus precludes ‘liability]’ for the furnishing of such products on grounds that under the circumstances described in the statute, their ‘inherent’ dangers do not make them ‘defective’ when used as intended by voluntary consumers who are aware of the risks .... In other words, under the conditions described by section 1714.45, a tobacco supplier simply commits no tort against knowing and voluntary smokers by making cigarettes available for their use.” (Richards, supra, 14 Cal.4th at p. 1000 , italics added, original italics omitted.)
Thus, in Richards , we hewed to the statutory language, as informed by the Restatement Second of Torts, section 402A, comment i, in defining liability under former section 1714.45. In my view, we should do the same in articulating the scope of the immunity and not engraft a “pure and unadulterated” standard. This is not to say that some additives may not give rise to unique dangers that take a product outside the statutory definition; but we *870 should not adopt a standard that will potentially sweep too many cases within its ambit. I therefore agree with the majority that plaintiffs action may proceed on the theory that the addition of ammonia or other additives to cigarettes posed some independent risk not within the “ordinary knowledge common to the community” about the dangers of tobacco. (Former § 1714.45, subd. (a)(2).) Plaintiff, of course, will have to prove that case.
Although this case arises under former section 1714.45, which included tobacco as one of the “common consumer product[s]” exempted from product liability actions under the *868 conditions described (Stats. 1987, ch. 1498, § 3, p. 5778), the majority’s standard will apply equally to the current version of section 1714.45, which continues to extend immunity to numerous other products. (See § 1714.45, subd. (a)(2).) This breadth of application makes formulation of the proper standard particularly critical.