Under California’s Proposition 65 (“Prop 65”), businesses are required to give “clear and reasonable warnings” to consumers regarding potential chemical exposure if their product contains a chemical “known to the state to cause cancer.” In the recent decision Nat’l Association of Wheat Growers, et al. v. Bonta, et al., the Ninth Circuit Court of Appeal explored businesses’ First Amendment rights and the government’s ability to compel commercial speech. The Ninth Circuit found that the State of California cannot compel businesses to provide a Prop 65 warning for glyphosate, the most commonly used herbicide in the world.
The Court reasoned that, because there is no consensus in the scientific community as to whether glyphosate is carcinogenic, there were less burdensome ways for California to convey its message than requiring businesses to include Prop 65 warning labels on their products. The decision is likely to have far-reaching impacts on ongoing and future Prop 65 litigation, as well as the California Office of Environmental Health Hazard Assessment’s (“OEHHA”) chemical-listing decisions for other “controversial” and “contested” chemicals.
What is Prop 65?
Prop 65 is a California law that requires California consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. OEHHA maintains a list of over 900 chemicals for which warnings are required and is continually adding new chemicals to the list.[1]
What is Glyphosate?
Glyphosate is a widely-used herbicide that controls weeds and grasses, best known in products such as Monsanto’s Roundup. Since 1974, when glyphosate was first registered as a pesticide in the U.S., the EPA has reviewed and reassessed its safety every 15 years. Although the EPA has consistently concluded that glyphosate is not likely to be carcinogenic to humans, the International Agency for Research on Cancer (“IARC”) has classified glyphosate as “probably carcinogenic to humans” based on “limited evidence” in humans and “sufficient evidence” in animals.[2] A significant number of international regulatory authorities and organizations disagree with IARC’s classification of glyphosate, and global studies from the European Union, Canada, Australia, New Zealand, Japan, and South Korea have all concluded that glyphosate is unlikely to be carcinogenic to humans.
The First Amendment and Commercial Speech
Under a long line of Supreme Court jurisprudence, the government is permitted to restrict or compel certain categories of speech. As to commercial speech (i.e., speech that promotes a business or commercial activity), the government may restrict or compel speech that is “purely factual and uncontroversial”, “as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.”[3]
If the commercial speech is not “purely factual and uncontroversial”, the regulation is subject to a higher level of judicial scrutiny (intermediate scrutiny), and the government must show: (1) a substantial interest in regulating speech; (2) that the regulation advances the government interest asserted; and (3) that the regulation is not any more extensive than necessary to serve the government’s interest.[4]
Nat’l Association of Wheat Growers v. Bonta: Agricultural Producers and Businesses Challenge Prop 65 Warning Labels on First Amendment Grounds
In March 2017, OEHHA announced it would be adding glyphosate to its list of chemicals known to cause cancer for purposes of Prop 65 based solely on IARC’s findings.[5] Later that year, a group of agricultural producers and businesses filed a lawsuit in the U.S. District Court for the Eastern District of California, challenging the OEHHA’s decision. Plaintiffs argued that, because the issue of whether glyphosate is carcinogenic is “hotly contested”, California could not compel businesses to provide warnings stating that glyphosate is “known” to cause cancer.
The District Court agreed that Prop 65 warnings for glyphosate did not qualify as “purely factual and uncontroversial” because the EPA and international scientific community disagree with IARC’s categorization of glyphosate as carcinogenic. Therefore, the District Court applied intermediate scrutiny and concluded that the labels did not directly advance California’s interest in informing consumers of cancer risks. The District Court permanently enjoined enforcement of Prop 65 warning labels for glyphosate, and California appealed.
The Ninth Circuit affirmed the District Court on appeal, concluding that because “the overall message that glyphosate is unsafe . . . is, at best disputed”, Prop 65 labels would require “plaintiffs to convey a controversial, fiercely contested message that they fundamentally disagree with.” Accordingly, because California had less burdensome ways to convey its message than to compel plaintiffs to convey it for them, the Prop 65 warning requirement as applied to glyphosate was unconstitutional.
Although the effect of Nat’l Association of Wheat Growers v. Bonta on non-glyphosate Prop 65 litigation remains to be seen, the decision will almost certainly be cited by current and future litigants seeking to contest other chemicals on the Prop 65 list.
FOOTNOTES
[1] https://oehha.ca.gov/media/downloads/proposition-65//p65chemicalslist.pdf
[2] https://www.epa.gov/ingredients-used-pesticide-products/glyphosate
[3] Zauderer v. Office of Disc. Counsel, 471 U.S. 626, 628 (1985)
[4] Central Hudson v. Public Svn. Comm’n, 447 U.S. 557 (1980)
[5] https://oehha.ca.gov/proposition-65/crnr/glyphosate-be-listed-under-proposition-65-known-state-cause-cancer