85 F.4th 1263
9th Cir.2023Background
- California’s Prop 65 requires businesses to provide a “clear and reasonable” warning before knowingly and intentionally exposing Californians to listed carcinogens; OEHHA implements the list and safe-harbor warnings.
- In 2015 IARC classified glyphosate as “probably carcinogenic to humans” (Group 2A); many other regulators, including EPA and several international agencies, concluded glyphosate is not likely carcinogenic, creating a persistent scientific dispute.
- Plaintiffs (agriculture and agribusiness groups and manufacturers) sued California’s Attorney General, arguing Prop 65’s glyphosate warning compels speech in violation of the First Amendment; district court preliminarily and finally enjoined enforcement as applied to glyphosate.
- The central legal question is which standard governs compelled commercial speech: the lower Zauderer standard for “purely factual and uncontroversial” disclosures or the intermediate Central Hudson scrutiny applicable to commercial-speech regulations.
- The Attorney General offered alternative warnings (including a later OEHHA glyphosate-specific safe-harbor warning); the Ninth Circuit held none were “purely factual and uncontroversial,” applied intermediate scrutiny, and affirmed the injunction.
- Judge Schroeder dissented, urging remand for district-court review of OEHHA’s final wording and arguing the final warning is factually accurate and permissible under Zauderer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zauderer’s lower standard applies to Prop 65 glyphosate warnings | Zauderer inapplicable because the warnings are not purely factual or uncontroversial given scientific disagreement | Zauderer applies because the warnings state factual information about listing and agency positions | Zauderer does not apply; warnings are not purely factual and uncontroversial |
| Whether the standard Prop 65 safe-harbor warning is misleading | Warning conveys that glyphosate "causes cancer" in ordinary meaning and therefore misleads consumers | Statutory/regulatory wording is literal and accurate under Prop 65 | Warning is misleading to ordinary consumers because statutory "known" has technical meaning the average consumer won’t grasp |
| Whether OEHHA’s final glyphosate-specific warning cures the problem | Plaintiffs: the OEHHA wording still conveys glyphosate is unsafe and elevates one side of an unresolved debate | State: the OEHHA warning is factually accurate, balances IARC and EPA views, and is within Zauderer | OEHHA warning is materially similar in effect, remains controversial and potentially misleading; does not qualify for Zauderer |
| Whether any glyphosate warning survives Central Hudson intermediate scrutiny | Plaintiffs: warnings do not directly advance the State’s interest and are more extensive than necessary; less burdensome alternatives exist | State: protecting public health is a substantial interest; warnings directly inform consumers | Warnings fail Central Hudson: state interest is substantial but the compelled warnings as drafted do not directly and narrowly advance it and are more extensive than necessary |
Key Cases Cited
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (permits compelled disclosures of purely factual, uncontroversial commercial information under a relaxed test)
- Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) (establishes intermediate-scrutiny test for commercial-speech regulations)
- Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (limits Zauderer: compelled disclosures must be factual, uncontroversial, and not unduly burdensome)
- CTIA—The Wireless Ass’n v. City of Berkeley, 928 F.3d 832 (9th Cir. 2019) (applies sentence-by-sentence factuality analysis under Zauderer; distinguishes noncontroversial compelled disclosures)
- Am. Beverage Ass’n v. City & County of San Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc) (explains limits of Zauderer and that factual accuracy alone may be insufficient)
- California Chamber of Commerce v. Council for Educ. & Research on Toxics, 29 F.4th 468 (9th Cir. 2022) (Prop 65 warning for acrylamide was controversial where reputable scientific disagreement existed)
- Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011) (strikes content-based regulation premised on controverted evidence; courts skeptical of regulating speech based on disputed science)