529 F.Supp.3d 1099
E.D. Cal.2021Background
- Acrylamide is a chemical found in many cooked/starchy foods; animal and in vitro studies link it to cancer, but dozens of human epidemiological studies show no consistent association. Public-health bodies have expressed concern but generally have not advised avoiding such foods; California exempted coffee after review.
- California’s Proposition 65 requires businesses to give a “clear and reasonable” cancer warning for chemicals “known to the State to cause cancer”; regulations include a model safe-harbor warning that states products “can expose you to [chemical] which is known to the State of California to cause cancer.”
- Private enforcers (notably CERT) have aggressively litigated acrylamide claims under Prop. 65, obtaining settlements and consent decrees that used the safe-harbor wording; private suits can impose large penalties, attorneys’ fees, and lengthy litigation costs on defendants.
- The California Chamber sued the Attorney General (42 U.S.C. § 1983) seeking prospective relief that would bar new Prop. 65 lawsuits requiring the acrylamide cancer warning; CERT intervened and moved for summary judgment claiming Noerr–Pennington immunity.
- The court denied CERT’s Noerr–Pennington defense and granted the Chamber a preliminary injunction prohibiting new enforcement lawsuits (state or private) seeking to require the Prop. 65 cancer warning as applied to acrylamide in food and beverages, while preserving existing settlements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Noerr–Pennington bars Chamber’s challenge to Prop. 65 enforcement by private litigants | Noerr doesn’t protect private enforcers from a constitutional challenge brought to vindicate plaintiffs’ own First Amendment rights; Chamber isn’t seeking to punish petitioning | CERT: Noerr protects petitioning; Chamber’s suit burdens CERT’s petitioning and should be barred | Noerr defense rejected: doctrine doesn’t shield private enforcement from a plaintiff’s constitutional challenge to the statute’s application |
| Whether a preliminary injunction against new Prop. 65 suits is an unconstitutional prior restraint on petitioning | Injunction targets only filing/prosecution of new lawsuits (not demand letters/notices) and thus is not a prior restraint on speech or petitioning | CERT: enjoining new lawsuits is a prior restraint and chills Petition Clause rights | Not a prior restraint as framed; injunction limited to new lawsuits and permissible where underlying suit seeks to enjoin unconstitutional activity |
| Whether the Prop. 65 safe-harbor acrylamide warning is "purely factual and uncontroversial" (Zauderer) / passes Central Hudson intermediate scrutiny | Safe-harbor language is misleading and controversial because it implies acrylamide in food is an additive and that dietary exposure to acrylamide is known to cause human cancer despite unresolved science | State: warning is factual, related to the substantial interest in protecting public health, and analogous to upheld disclosures | Court: safe-harbor warning is not purely factual/uncontroversial and likely fails Zauderer; also likely fails Central Hudson because it does not directly advance the interest and is more extensive than necessary |
| Whether equities, irreparable harm, and public interest warrant a preliminary injunction | Chamber: likely First Amendment injury and imminent surge of private enforcement notices/lawsuits produce irreparable harm; narrow injunction preserves alternative awareness tools | State: injunction impairs enforcement of health-protective statute and may create uncertainty | Court: irreparable harm shown; balance/public interest favor narrow preliminary injunction preserving existing settlements and alternative enforcement means |
Key Cases Cited
- E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961) (establishes petitioning immunity doctrine)
- United Mine Workers v. Pennington, 381 U.S. 657 (1965) (Noerr–Pennington extended to labor contexts)
- BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002) (Noerr analysis and First Amendment concerns about injunctions against litigation)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (compelled commercial disclosures permissible if factual and uncontroversial and reasonably related to government interest)
- Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980) (intermediate scrutiny for commercial speech)
- Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (compelled speech and content-based regulation principles)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction standard)
- Sosa v. DIRECTV, 437 F.3d 923 (9th Cir. 2006) (Noerr framework and petitioning conduct protection)
- Empress LLC v. City & County of San Francisco, 419 F.3d 1052 (9th Cir. 2005) (petitioning immunity applies to § 1983 claims)
- CTIA—The Wireless Ass’n v. City of Berkeley, 928 F.3d 832 (9th Cir. 2019) (upholding compelled commercial disclosure under Zauderer in a differing factual/regulatory context)