Company Name: PPG Industries, Inc.
Public Availability Date: December 28, 2006
Document Sections:
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
December 15, 2006
Office of the Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Re: Shareholder Proposal of People for the Ethical Treatment of Animals
Securities Exchange Act of 1934 - Rule 14a-8
Dear Ladies and Gentlemen:
We are writing on behalf of our client, PPG Industries, Inc., a Pennsylvania
corporation (the "Company"), pursuant to Rule 14a-8(j) under the Securities
Exchange Act of 1934, as amended, to respectfully request that the Staff of the
Division of Corporation Finance (the "Staff") of the Securities and Exchange
Commission (the "Commission") concur with the Company's view that, for the
reasons stated below, the shareholder proposal and the statement in support
thereof (collectively, the "Proposal") submitted by the People for the Ethical
Treatment of Animals (the "Proponent"), may be properly omitted from the
Company's proxy statement and form of proxy for its 2007 Annual Shareholders
Meeting (collectively, the "2007 Proxy Materials").
Pursuant to Rule 14a-8(j), enclosed herewith are six (6) copies of (i) this
letter and (ii) the Proposal, which is attached to this letter as Exhibit A.
Also, in accordance with Rule 14a-8(j), a copy of this submission is being
simultaneously mailed to the Proponent, informing them of the Company's
intention to omit the Proposal from the 2007 Proxy Materials. Pursuant to Rule
14a-8(j), this letter is being filed with the Commission no later than eighty
(80) calendar days before the Company files its definitive 2007 Proxy Materials
with the Commission.
I. The Proposal
The Proposal consists of a resolution that reads: "RESOLVED, that the Board
issue a report to shareholders on the feasibility of amending the Company's
Animal Welfare Policy to ensure that: i) it extends to all contract laboratories
and is reviewed with such outside laboratories on a regular basis, and ii) it
addresses animals' social and behavioral needs. Further, the shareholders
request that the report include information on the extent to which in-house and
contract laboratories are adhering to the Policy, including the implementation
of enrichment measures."
The full text of the Proposal is set forth in the letter from the Proponent
attached hereto as Exhibit A.
II. The Company's Animal Welfare Policy
In response to the Proposal, the Company has amended its Animal Welfare Policy
effective December 14, 2006 (as amended, the "Policy"), the text of which is set
forth below. The italicized language of the Policy denotes the provisions that
were added by the amendment (the "Amendment").
Animal Welfare Policy
PPG is firmly committed to using alternatives to animal testing, including,
without limitation, in vitro tests for assessing skin corrosion, skin
absorption, skin irritation, phototoxicity and pyrogenicity endpoints, when such
alternatives are scientifically valid and predictive and acceptable to
regulatory bodies. When animal testing is necessary, PPG is committed to using
study designs that maximize the amount of information derived per test while
minimizing the aggregate number of animals subjected to testing. PPG is equally
committed to conducting animal testing in the most humane manner available and
in a manner that addresses the social and behavioral needs of the animals. PPG's
Animal Welfare Policy will be extended to any contract laboratory retained by
PPG to conduct animal testing and will be reviewed with any such laboratory on a
regular basis.
The Company's Policy also is available on its website at http://corporateportal.ppg.com/NA/CORP/EHS/ProductStewardship/Animal+Welfare+Policy.htm
III. The Proposal may be omitted pursuant to Rule 14a-8(i)(10) because the
Proposal has already been substantially implemented by the Company
The Company respectfully requests that the Staff concur with its view that the
Proposal may properly be omitted from its 2007 Proxy Materials pursuant to Rule
14a-8(i)(10) because the Proposal has been substantially implemented.
Pursuant to Rule 14a-8(i)(10), a company may exclude a shareholder proposal if
the company has already substantially implemented such proposal. The Staff has
clarified that "a determination that the company has substantially implemented
the proposal depends upon whether [the company's] particular policies, practices
and procedures compare favorably with the guidelines of the proposal." Texaco,
Inc. (available March 28, 1991). Stated differently, a company may exclude a
shareholder proposal under Rule 14a-8(i)(10) when it has implemented the
essential objective of the proposal, even where the manner by which the company
implements a proposal does not precisely correspond to the actions sought by a
shareholder proponent. See Release No. 34-20091 (August 16, 1983), AMR
Corporation (April 17, 2000), Masco Corporation (March 29, 1999) and Erie
Indemnity Company (March 15, 1999).
The Policy implements the essential objective of the Proposal and, therefore,
substantially implements the Proposal within the meaning of Rule 14a-8(i)(10).
The first portion of the resolution contained in the Proposal requests that "the
Board issue a report to shareholders on the feasibility of amending the
Company's Animal Welfare Policy to ensure that: i) it extends to all contract
laboratories and is reviewed with such outside laboratories on a regular basis,
and ii) it addresses animals' social and behavioral needs." The Company has
substantially implemented this part of the Proposal by adopting the Amendment to
the Policy.
The stated objective of this portion of the Proposal is for the Company to
assess the feasibility of amending its then-current policy in the precise manner
in which the Company has now implemented through adoption of the Amendment.
Accordingly, the Company has gone beyond the stated objective of the Proposal
(reporting on the feasibility of amending the then-current policy) by actually
implementing the underlying essential objective of the Proposal, that is, to
amend the Company's then-current policy as requested in the Proposal.
The second portion of the resolution contained in the Proposal requests that the
Company issue a report to shareholders regarding adherence to its animal welfare
policy. The Company has substantially implemented this part of the Proposal by
posting on its website a statement that indicates the extent to which it adheres
to the Policy: "In cases where animal testing is necessary, PPG strictly adheres
to the principles outlined in the PPG Animal Welfare Policy." Please see http://corporateportal.ppg.com/NA/CORP/EHS/ProductStewardship/toxicology.htm.
The essential objective of this portion of the Proposal is that the Company
inform shareholders about adherence to the Policy, which, as amended, extends to
contract laboratories and, by addressing the social and behavioral needs of
animals, includes implementation of enrichment measures. Accordingly, the
Company has substantially implemented the essential objective of this portion of
the Proposal.
IV. Conclusion
Based upon the foregoing analysis, we respectfully request that the Staff of the
Commission concur that it will take no action if the Company excludes the
Proposal from its 2007 Proxy Materials pursuant to Rule 14a-8(i)(10). Consistent
with the provisions of 14a-8(j), we are concurrently providing a copy of this
correspondence to the Proponent. We recognize that the Staff has not interpreted
Rule 14a-8 to require proponents to provide the Company and its counsel a copy
of any correspondence that the proponent submits to the Staff. Therefore, in the
interest of a fair and balanced process, we request that the Staff notify the
undersigned if it receives any correspondence on the Proposal from the Proponent
or other persons, unless that correspondence has specifically confirmed to the
Staff that the Company or its undersigned counsel have timely been provided with
a copy of the correspondence. If we can provide additional correspondence to
address any questions that the Staff may have with respect to this no-action
request, please do not hesitate to call me at (412) 355-6277.
Sincerely,
/s/
Paul C. Cancilla
Enclosures
cc: Keith L. Belknap, Esq., Assistant General Counsel, PPG Industries, Inc.
Susan L. Hall, Esq., Legal Counsel for the People for the Ethical Treatment of
Animals
Michael C. McLean, Esq., Kirkpatrick & Lockhart Nicholson Graham LLP
[APPENDIX]
ANIMAL WELFARE POLICY
This Proposal is submitted by People for the Ethical Treatment of Animals
RESOLVED, that the Board issue a report to shareholders on the feasibility of
amending the Company's Animal Welfare Policy to ensure that: i) it extends to
all contract laboratories and is reviewed with such outside laboratories on a
regular basis, and ii) it addresses animals' social and behavioral needs.
Further, the shareholders request that the report include information on the
extent to which in-house and contract laboratories are adhering to the Policy,
including the implementation of enrichment measures.
Supporting Statement:
Our Company conducts tests on animals as part of its product research and
development, as well as retaining independent laboratories to conduct such
tests. Abuses in independent laboratories are not uncommon and have recently
been exposed by the media. The Company has posted on its Web site an Animal
Welfare Policy. The Company, as an industry leader, is commended for its stated
commitment to "minimize or avoid animal testing whenever possible."
However, the disclosure of atrocities recorded at the independent laboratory,
Covance, Inc. in Vienna, Virginia, has made the need for a formalized, publicly
available animal welfare policy that extends to all outside contractors all the
more relevant, indeed urgent.1 Filmed footage showed primates being subjected to
such gross physical abuses and psychological torments that Covance sued to
enjoin People for the Ethical Treatment of Animals in Europe from publicizing
it. The Honorable Judge Peter Langan in the United Kingdom refused to stop PETA
from publicizing the film and instead ruled in PETA's favor. The Judge stated in
his opinion that just two aspects of the video, namely the "rough manner in
which the animals are handled and the bleakness of the surroundings in which
they are kept ... even to a viewer with no particular interest in animal
welfare, at least cry out for explanation." 2
Shareholders cannot monitor what goes on behind the closed doors of the animal
testing laboratories, so the Company must. Accordingly, we urge the Board to
commit to promoting basic animal welfare measures as an integral part of our
Company's corporate stewardship.
We urge shareholders to support this Resolution.
-----FOOTNOTES-----
1 In October 2005, Covance's Director of Early Development stated that "We've
worked with just about every major company around the world" (http://www.azcentral.com/arizonarepublic/castvallevopinions/articles/1021credit21.html)
2 The case captioned Covance Laboratories Limited v. PETA Europe Limited was
filed in the High Court of Justice, Chancery Division, Leeds District Registry,
Claim No. 5C-00295. In addition to ruling in PETA's favor, the Court ordered
Covance to pay PETA [pound]50,000 in costs and fees.
[INQUIRY LETTER]
December 20, 2006
VIA FEDERAL EXPRESS
Office of the Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Re: Withdrawal of Shareholder Proposal by People for the Ethical Treatment of
Animals
Dear Ladies and Gentlemen:
We are writing on behalf of our client, PPG Industries, Inc., a Pennsylvania
corporation (the "Company"), in connection with our letter dated December 15,
2006 (the "No Action Request Letter") to the Division of Corporation Finance
requesting that the Staff of the Division of Corporation Finance (the "Staff")
concur with the Company's view that, for the reasons stated in the No Action
Request Letter, the shareholder proposal and the statement in support thereof
(collectively, the "Proposal") submitted by the People for the Ethical Treatment
of Animals ("PETA"), may properly be omitted from the Company's proxy statement
and form of proxy for its 2007 Annual Shareholders Meeting.
Earlier today, the Company received a letter dated December 20, 2006 from Susan
L. Hall, Legal Counsel, on behalf of PETA, informing the Company that PETA
agreed to withdraw the Proposal. PETA also sent a copy of this withdrawal letter
to the Division of Corporation Finance. A copy of the PETA's withdrawal letter
is attached hereto as Exhibit A.
In light of PETA's withdrawal of the Proposal, on behalf of the Company, we
hereby withdraw the No Action Request Letter. A copy of this letter is also
being provided to PETA.
If you have any questions regarding this matter, please do not hesitate to
contact the undersigned at (412) 355-6277.
Sincerely,
/s/
Paul C. Cancilla
Enclosures
cc: Keith L. Belknap, Esq., Assistant General Counsel, PPG Industries, Inc.
Susan L. Hall, Esq., Legal Counsel for the People for the Ethical Treatment of
Animals
Michael C. McLean, Esq., Kirkpatrick & Lockhart Nicholson Graham LLP
[INQUIRY LETTER]
December 20, 2006
BY ELECTRONIC MAIL: cfletters@sec.gov
Office of the Chief Counsel
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F. Street, N.W.
Washington, D.C. 20549
Re: Withdrawal of Shareholder Proposal of PETA for Inclusion in the 2007 Proxy
Statement of Pilgrim's Pride Corporation
Ladies and Gentlemen:
This letter is filed in response to a letter dated December 15, 2006, submitted
to the SEC by PPG Industries, Inc. ("PPG" or "the Company"). The Company seeks
to exclude a shareholder proposal submitted by People for the Ethical Treatment
of Animals ("PETA") on the basis that it has been substantially implemented.
We agree that the Company has substantially implemented the resolution.
Accordingly, we have advised PPG that we are withdrawing the resolution and wish
to advise the Staff as well so that its time and resources can be directed to
other matters.
Very truly yours,
/s/
Susan L. Hall
Legal Counsel
cc: Keith Belknap, Esq. (via e-mail)
Jessica T. Sandler (via e-mail)
[STAFF REPLY LETTER]
December 28, 2006
Paul C. Cancilla
Kirkpatrick & Lockhart Nicholson Graham LLP
Henry W. Oliver Building
535 Smithfield Street
Pittsburgh, PA 15222-2312
Re: PPG Industries, Inc.
Dear Mr. Cancilla:
This is in regard to your letter dated December 20, 2006 concerning the
shareholder proposal submitted by the People for the Ethical Treatment of
Animals for inclusion in PPG's proxy materials for its upcoming annual meeting
of security holders. Your letter indicates that the proponent has withdrawn the
proposal, and that PPG therefore withdraws its December 15, 2006 request for a
no-action letter from the Division. Because the matter is now moot, we will have
no further comment.
Sincerely,
/s/
Ted Yu
Special Counsel
cc: Susan L. Hall
Legal Counsel
People for the Ethical Treatment of Animals
501 Front St.
Norfolk, VA 23510
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