On June 22, 2020, District Judge William B. Shubb delivered a substantial defeat to the state of California in the ongoing dispute over Proposition 65 cancer warnings for the herbicide glyphosate. The plaintiffs in National Association of Wheat Growers, et al. v. Xavier Becerra, Case No. 17 Civ. 2401, 2020 WL 3412732 (E.D. Cal. June 22, 2020) includes several growers' associations, other agri-business groups, and Monsanto Company, the principal registrant for glyphosate-containing herbicides. The defendant is the Attorney General for the state of California, in his official capacity. Plaintiffs sought to block a 2017 order from California's Office of Environmental Health Hazard Assessment (OEHHA), requiring a cancer warning on glyphosate-containing products beginning in July 2018.
Judge Shubb permanently enjoined the state of California from enforcing the Proposition 65 warning requirements for glyphosate on the grounds that OEHHA's 2017 order violated plaintiffs' First Amendment rights. If upheld following a likely appeal, this ruling could set the stage for future First Amendment challenges to OEHHA's orders under Proposition 65 as unconstitutional compelled speech where the science surrounding the alleged product risk is disputed.
Glyphosate is the active ingredient in Monsanto's widely used Roundup herbicide and similar products. In 2015, the International Agency for Research on Cancer (IARC) classified glyphosate as "probably carcinogenic" to humans based on animal research and "limited evidence" that it could cause cancer in humans. See Nat'l Ass'n of Wheat Growers, 2020 WL 3412732, at *2. As a result of this classification, OEHHA, the agency tasked with implementing Proposition 65, listed glyphosate as a chemical "known to the state of California to cause cancer." By placing glyphosate on this list, OEHHA triggered Proposition 65's requirement that all products that could potentially expose California consumers to glyphosate must contain a clear and reasonable warning of the risk posed by the chemical. California Health and Safety Code § 25249.6. The warning requirement was set to take effect on July 7, 2018. Id. §§ 25249.6, 25249.10(b).
However, numerous other expert public health and chemical assessment organizations, including the United States government through the United States Environmental Protection Agency (US EPA), certain agencies within the World Health Organization, and government regulators from numerous other countries also reviewed the data on glyphosate and concluded "that there is insufficient or no evidence that glyphosate causes cancer." Wheat Growers, 2020 WL 3412732, at *2. Given the weight of evidence against the carcinogenicity of glyphosate, plaintiffs filed suit to enjoin the state of California from enforcing Proposition 65's warning requirements against them on the grounds that such warnings constituted compelled speech in contravention of the First Amendment.
In early 2018, Judge Shubb issued a temporary order restraining the state of California from enforcing OEHHA's Proposition 65 order while the Wheat Growers case was pending. In August of 2019, US EPA issued a letter to glyphosate registrants stating that it would consider a cancer warning on a glyphosate product to be a "false and misleading statement" in violation of FIFRA (the federal pesticide law) requirements. US EPA's decision made it impossible for a registrant to comply with both Proposition 65 and federal law, adding to the anticipation leading up to Judge Schubb's decision on the plaintiffs' request for a permanent injunction.
The Problems with Proposition 65
Prior to reaching the First Amendment analysis, Judge Shubb rejected the state's effort to argue that plaintiffs' challenge was not ripe because their products contained glyphosate at a level below Proposition 65's "no significant risk level." Wheat Growers, WL 3412732, at *4. OEHHA's regulations contain a "safe harbor" provision exempting products which do not pose a significant risk from Proposition 65's warning requirements. Judge Shubb was not persuaded by the state's "ripeness" argument.
He recognized that even for products that fall below the "no significant risk level," Proposition 65’s safe harbor does not provide "reasonable assurance that [the manufacturers] would not be subject to enforcement actions." Id. The judge acknowledged that "private plaintiffs have brought enforcement actions for various chemicals notwithstanding a defense of compliance with the safe harbor level for those chemicals, including where the California Attorney General said a proposed enforcement suit had no merit." Id. at *4.
The court also went on to note the painfully low barrier to entry for private enforcers to bring Proposition 65 enforcement suits. While the Attorney General attempted to explain that his office will inform private enforcers that their claims are meritless and not in the public interest, Judge Shubb found these "purported barriers" to frivolous claims in fact provide no control, stating "one California Court of Appeal has explained that the instigation of Proposition 65 enforcement actions is 'easy – and almost absurdly easy at the pleading stage and pretrial stages.'" Id. at *5 (citing Consumer Def. Grp. v. Rental Hous. Indus. Members, 137 Cal. App. 4th 1185, 1215 (2006)). Accordingly, the court determined that the threat of a private enforcement action made the first amendment challenge ripe for review.
First Amendment Analysis
In an attempt to survive First Amendment review, the Attorney General's office argued that Proposition 65 warnings should be analyzed under the standard set out in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). Under Zauderer, compelled commercial speech passes constitutional muster if a speaker is required to disclose "'purely factual and uncontroversial information' about commercial products or services, as long as the disclosure requirements are 'reasonably related' to a substantial government interest and are neither 'unjustified [n]or unduly burdensome.'" Wheat Growers, WL 3412732, at *6.
Plaintiffs argued, and the court agreed, that the test articulated by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), controlled the analysis. Any restriction on commercial speech that is neither misleading nor connected to unlawful activity must "'directly advance the governmental interest asserted' and must not be 'more extensive than is necessary to serve that interest.'" Id. (quoting Central Hudson, 447 U.S. at 566). Judge Shubb held that as applied to glyphosate, any Proposition 65 cancer warning would be misleading given that "[e]very regulator of which the court is aware, with the sole exception of the IARC, has found that glyphosate does not cause cancer or that there is insufficient evidence to show that it does." Id at *8.
The court also dismissed the Attorney General's attempt to craft three "alternative warnings" that plaintiffs could place on their products in lieu of the standard Proposition 65 warning that is per se clear and reasonable, as "any glyphosate warning which does not compel a business to make misleading statements about glyphosate's carcinogenicity would likely violate the Attorney General's own guidelines for approval of Proposition 65 enforcement action settlements." Id. at *10. The court stated, in no uncertain terms, that it could not "condone the state's approach here, where it continues to argue that the warning requirement poses no First Amendment concerns and then repeatedly proposes iterations of alternative warnings that the state would never allow under normal circumstances, absent this lawsuit." Id.
After finding the Zauderer test to be inapplicable, the court's application of Central Hudson to the warning requirement was relatively straightforward. Id. at *12. Judge Shubb held that the warning requirement, as applied to glyphosate, failed intermediate scrutiny under Central Hudson because, while protecting Californians from cancer is a substantial interest, "misleading statements about glyphosate's carcinogenicity, and the state’s knowledge of that purported carcinogenicity, do not directly advance that interest." Id.
The court granted plaintiffs' motion for summary judgment and issued a permanent injunction on Proposition 65’s warning requirement as to glyphosate. Id. at *13.
This decision invalidating the warning requirement for glyphosate most likely will be appealed by the state. If upheld by the Ninth Circuit, the decision could be a turning point for the Proposition 65 program. In any event, Judge Schubb's analysis regarding ripeness and the perils of false or misleading (i.e., excessive) warnings provides a foundation for additional challenges to the other warning requirements, particularly where there is controversial evidence regarding risk.