29 F.4th 468
9th Cir.2022Background
- CalChamber sued the California Attorney General seeking to enjoin enforcement of Proposition 65’s cancer-warning requirement as applied to acrylamide in food, arguing the warning compels false or misleading commercial speech in violation of the First Amendment.
- OEHHA added acrylamide to the Prop. 65 list based on animal studies; OEHHA’s “safe-harbor” food warning reads: "WARNING: Consuming this product can expose you to [chemical], which is known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov/food."
- Prop. 65 allows private “public interest” enforcers to bring suits after a 60‑day notice if state prosecutors decline; civil penalties can reach $2,500 per day per violation.
- The district court granted a preliminary injunction barring the Attorney General and private enforcers (including intervenor CERT) from filing new Prop. 65 suits about acrylamide in food, finding CalChamber likely to succeed because the warning is controversial, misleading, and the enforcement regime unduly burdensome.
- CERT intervened, appealed the injunction, and argued (among other things) that the injunction was an unconstitutional prior restraint on its Petition Clause rights; a motions panel earlier stayed the injunction only as to private enforcers pending appeal.
- The Ninth Circuit panel held CERT has Article III standing to appeal as an enjoined intervenor and affirmed the district court’s grant of a preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to appeal by intervenor (CERT) | CalChamber argued CERT lacked standing because it had no immediate 60‑day notices related to acrylamide in food | CERT argued the injunction directly barred its ability to bring Prop. 65 suits about acrylamide in food and thus it suffered concrete injury | Court: CERT has standing—its history of acrylamide enforcement and the injunction’s bar constitute a concrete, redressable injury |
| Whether Prop. 65 acrylamide warning is permissible compelled commercial speech under Zauderer | CalChamber: warning is not purely factual/noncontroversial, is misleading, and enforcement regime imposes undue burdens | State/CERT: warning is factual, justified, and serves the substantial public‑health interest | Court: likely success for CalChamber—warning is controversial and misleading; enforcement regime creates heavy burdens; Zauderer not satisfied |
| Whether enjoining prospective Prop. 65 suits is an unlawful prior restraint on Petition Clause rights | CERT: injunction is a prior restraint on the right to petition and cannot issue absent final adjudication of truth | CalChamber: courts can enjoin lawsuits when the objective is illegal or when preliminary merits showing is adequate | Court: injunction is not an unlawful prior restraint here because the district court adequately found the likely illegality of the targeted litigation |
| Scope/privity of injunction as to intervenor | CERT: it is not in privity with the Attorney General and injunction overbroad | CalChamber: intervenor participated and thus is bound; Fed. R. Civ. P. 65(d) permits enjoining parties and those in active concert | Court: injunction properly binds CERT as an intervenor (treated as a party); no abuse of discretion as applied to CERT |
Key Cases Cited
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (framework for compelled commercial-disclosure analysis)
- Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (clarifies Zauderer scope and compelled speech principles)
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (intermediate scrutiny test for commercial speech)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standards for preliminary injunctions)
- CTIA—The Wireless Ass’n v. City of Berkeley, 928 F.3d 832 (9th Cir. 2019) (applies Zauderer and recognizes public-health interest can be substantial)
- Am. Beverage Ass’n v. City & Cnty. of San Francisco, 916 F.3d 749 (9th Cir. 2019) (procedural standards for compelled commercial disclosure review)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (threatened injury must be certainly impending for standing)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (concrete harm required for Article III standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing elements)
- BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002) (recognizes that enjoining a lawsuit can be a prior restraint but is permissible where suits have illegal objective)
- Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731 (1983) (supports enjoining suits with illegal objectives)
- Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973) (privity concept for binding nonparties to injunctions)
- Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rels., 413 U.S. 376 (1973) (limitations on compelled or targeted speech)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable harm)