468 F.Supp.3d 1247
E.D. Cal.2020Background
- California's Proposition 65 requires businesses to provide a "clear and reasonable" warning before exposing consumers to chemicals the State lists as causing cancer; OEHHA implements the statute and provides two "safe harbor" warning formats.
- In 2015 the International Agency for Research on Cancer (IARC) classified glyphosate as "probably carcinogenic," and OEHHA listed glyphosate under Proposition 65 in 2017; most other regulators (including the EPA) have found insufficient evidence that glyphosate causes cancer.
- Plaintiffs (agricultural groups, agribusinesses, Monsanto, etc.) sued claiming the Proposition 65 glyphosate warning compels misleading speech in violation of the First Amendment; the district court entered a preliminary injunction in 2018 and the parties filed cross-motions for summary judgment on permanent relief.
- The State argued plaintiffs' challenge was unripe and defended the warning (and offered alternative warning texts); plaintiffs argued a credible risk of private enforcement suits and testing costs made the challenge ripe and that the required warning is misleading.
- The court found the case ripe (credible threat of private enforcement and costs of testing), held the required glyphosate warning is not "purely factual and uncontroversial" (so Zauderer does not apply), applied Central Hudson intermediate scrutiny, and concluded the warning fails that test; the court granted a permanent injunction barring enforcement of the glyphosate warning against the plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness to bring pre-enforcement First Amendment claim | Credible threat of private suits and testing costs; will not provide warnings | No realistic enforcement risk because of safe-harbor NSRL, procedural barriers, and AG letters discouraging suits | Case is ripe: credible threat exists despite safe-harbor and procedural steps; testing costs and private suits create injury |
| Applicability of Zauderer (is disclosure "purely factual and uncontroversial"?) | Required warning ("known to the State to cause cancer") is misleading given weight of authoritative agencies finding no cancer link | State says listing is a legal fact and alternative/contextual warnings cure any problem | Zauderer does not apply: the warning would mislead ordinary consumers and is not purely factual/uncontroversial |
| If Zauderer inapplicable, does the requirement survive Central Hudson? | No: warning does not directly advance consumer-information interest and is more extensive than necessary | Yes: State has substantial interest in informing public and may rely on Proposition 65 disclosure regime | Fails Central Hudson: State did not show the warning materially advances its interest or is narrowly tailored; less speech-restrictive means exist |
| Permanent injunction appropriate? (irreparable harm/balance of equities/public interest) | Harm to First Amendment rights, reputational and economic injuries; no adequate damages remedy | State's interest in informing public health | Permanent injunction granted: plaintiffs prevailed on merits, irreparable harm shown, balance/public interest favor injunction |
Key Cases Cited
- Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) (government may compel disclosures of purely factual, uncontroversial commercial information)
- Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) (intermediate scrutiny for regulation of commercial speech)
- National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (limits of Zauderer; compelled disclosures that are not factual/uncontroversial require heightened scrutiny)
- CTIA–The Wireless Ass’n v. City of Berkeley, 928 F.3d 832 (9th Cir. 2019) (literal truth can still be misleading; Zauderer analysis applied)
- American Beverage Ass’n v. City & County of San Francisco, 916 F.3d 749 (9th Cir. 2019) (applied Zauderer framework and found compelled warning unduly burdensome)
- Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) (pre-enforcement standing where credible threat of enforcement exists)
- Ibanez v. Florida Dep’t of Business & Professional Regulation, 512 U.S. 136 (1994) (government bears burden to justify compelled disclosures)
- eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (standards for permanent injunction)
- National Ass’n of Manufacturers v. Securities & Exchange Commission, 800 F.3d 518 (D.C. Cir. 2015) (statutory labeling/definitions cannot make a disclosure immune from being misleading)
- KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (11th Cir. 2006) (government has no legitimate interest in enforcing an unconstitutional law)