National Association of Wheat Growers et al v. Zeise et al

Filing 155

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 6/22/2020 GRANTING Plaintiffs' 117 Motion for Summary Judgment and DENYING Defendant's 124 Cross-Motion for Summary Judgment. IT IS FURTHER ORDERED that Plaintiffs' request for a permanent injunction enjoining the warning requirement of California Health and Safety Code § 25249.6 as to glyphosate is GRANTED. (Zignago, K.)

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Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 1 of 34 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 15 16 17 18 19 NATIONAL ASSOCIATION OF WHEAT GROWERS; NATIONAL CORN GROWERS ASSOCIATION; UNITED STATES DURUM GROWERS ASSOCIATION; WESTERN PLANT HEALTH ASSOCIATION; IOWA SOYBEAN ASSOCIATION; SOUTH DAKOTA AGRI-BUSINESS ASSOCIATION; NORTH DAKOTA GRAIN GROWERS ASSOCIATION; MISSOURI CHAMBER OF COMMERCE AND INDUSTRY; MONSANTO COMPANY; ASSOCIATED INDUSTRIES OF MISSOURI; AGRIBUSINESS ASSOCIATION OF IOWA; CROPLIFE AMERICA; and AGRICULTURAL RETAILERS ASSOCIATION, 20 21 22 23 24 No. 2:17-cv-2401 WBS EFB MEMORANDUM AND ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT Plaintiffs, v. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, Defendant. 25 26 27 ----oo0oo---This case concerns California’s Proposition 65, which, 28 1 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 2 of 34 1 among other things, requires warning labels for products 2 containing chemicals known to the state of California to cause 3 cancer, as determined by certain outside entities. 4 have filed cross motions for summary judgment on plaintiffs’ 5 claim that the warning requirement, as applied to the chemical 6 glyphosate,1 violates the First Amendment of the United States 7 Constitution.2 8 I. The parties (Docket Nos. 117, 124.) Background 9 Under Proposition 65, the Safe Drinking Water and Toxic 10 Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.5- 11 25249.14 (“Proposition 65”), the Governor of California is 12 required to publish a list of chemicals (the “Proposition 65 13 list”) known to the State to cause cancer, as determined by, 14 inter alia, certain outside entities, including the United States 15 Environmental Protection Agency (“EPA”), the United States Food 16 and Drug Administration (“FDA”), and the International Agency for 17 Research on Cancer (“IARC”).3 18 19 20 21 22 AFL-CIO v. Deukmejian, 212 Cal. Glyphosate is an herbicide widely used to control weeds in various settings and is an active ingredient in defendant Monsanto Company’s (“Monsanto”) product Roundup. Plaintiffs or their members sell glyphosate-based herbicides, use glyphosate in their cultivation of crops that are incorporated into food products sold in California, or process such crops into food products sold in California. (Am. Compl. ¶¶ 9-22 (Docket No. 23).) 1 23 Lauren Zeise, director of the Office of Environmental Health Hazard Assessment, was initially named in the complaint and included in the court’s preliminary injunction, though per the parties’ stipulation, she was dismissed from the case and the injunction was amended to refer specifically to the Attorney General. (Docket No. 93.) 2 24 25 26 27 28 The IARC was founded in 1965 as the cancer research arm of the United Nations’ World Health Organization and 2 3 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 3 of 34 1 App. 3d 425, 431-34 (3d Dist. 1989) (citing, inter alia, Cal. 2 Labor Code 6382(b)(1)); see also Cal. Code Regs. tit. 27 §§ 3 25306(m), 25904(b)4 (“A chemical or substance shall be included 4 on the list [of chemicals known to the state to cause cancer] if 5 it is classified by the International Agency for Research on 6 Cancer” as “carcinogenic to humans” or “[p]robably carcinogenic 7 to humans” and there is “sufficient evidence of carcinogenicity 8 in experimental animals.”).5 9 Proposition 65 also prohibits any person in the course 10 of doing business from knowingly and intentionally exposing 11 anyone to the listed chemicals without a prior “clear and 12 reasonable” warning, with this prohibition taking effect 12 13 months after the chemical has been listed. 14 Code §§ 25249.6, 25249.10(b); Deukmejian, 212 Cal. App. 3d at Cal. Health & Safety 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exists to “promote international collaboration in cancer research.” (Zuckerman Decl. (Docket No. 130), Ex. C at 5-6 (Docket No. 133-2).) The United States was a founding member of the IARC and remains a member. (Zuckerman Decl., Ex. C at 27.) The IARC publishes, in the form of “Monographs,” “critical reviews and evaluations of evidence on the carcinogenicity of a wide range of human exposures.” (Zuckerman Decl., Ex. A at 10 (Docket No. 134-1).) The other two outside entities named under the Proposition 65 regulations are the National Institute for Occupational Safety and Health, which is part of the Centers for Disease Control, and the National Toxicology Program, which is part of the National Institutes of Health. Cal. Code Regs. tit. 27 § 25306(m). Several new versions of the Proposition 65 implementing regulations took effect on August 30, 2018, after this case was filed. This opinion refers to the current versions of the regulations unless otherwise noted. 4 California’s Office of Environmental Health Hazard Assessment (“OEHHA”) is the agency responsible for implementing Proposition 65. Cal. Code Regs. tit. 27 div. 4 ch. 1 Preamble. 3 5 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 4 of 34 1 431-34. While the statute does not explain what constitutes a 2 clear and reasonable warning, OEHHA regulations provide two “safe 3 harbor” warnings which are per se clear and reasonable. 4 first safe harbor warning contains a black exclamation point in a 5 yellow triangle with the words “WARNING: This product can expose 6 you to chemicals including [name of one or more chemicals], which 7 is [are] known to the State of California to cause cancer. 8 more information go to www.P65Warnings.ca.gov.” 9 tit. 27, § 25603(a). The For Cal. Code Regs. The second safe harbor warning, the “short 10 form” warning, includes a black exclamation point in a yellow 11 triangle and the words “WARNING: Cancer – 12 www.P65Warnings.ca.gov.” Cal. Code Regs. tit. 27, § 25603(b). 13 Failure to comply with Proposition 65 may result in 14 penalties up to $2,500 per day for each failure to provide an 15 adequate warning, and enforcement actions may be brought by the 16 California Attorney General, district attorneys, certain city 17 attorneys and city prosecutors, or private citizens, who may 18 recover attorney’s fees. 19 Cal. Code Regs. tit. 11 § 3201. Cal. Health & Safety Code § 25249.7; 20 In 2015, the IARC classified glyphosate as “probably 21 carcinogenic” to humans based on “sufficient evidence” that it 22 caused cancer in experimental animals and “limited evidence” that 23 it could cause cancer in humans. 24 361-99 (Docket No. 134-4, 134-5).) 25 organizations, including the EPA, other agencies within the World 26 Health Organization, and government regulators from multiple 27 countries, have concluded that there is insufficient or no (Zuckerman Decl., Ex. A, at 28 4 However, several other Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 5 of 34 1 evidence that glyphosate causes cancer.6 (Heering Decl. (Docket 2 No. 117-4), Exs. N, R, S, T, U, Z, AA, MM, NN, OO, PP, QQ, RR, 3 SS, WW, XX, CCC (Docket Nos. 117-18, 117-22 to 117-25, 117-31, 4 117-32, 117-44 to 117-50, 117-54, 117-55, 117-60) (reports or 5 findings from, inter alia, the EPA, European Commission Health & 6 Consumer Protection Directorate-General, WHO Int’l Programme on 7 Chem. Safety, Germany, U.N. Food & Agric. Org., Canada, European 8 Chems. Agency, Australia, New Zealand, Japan, and South Korea). 9 The EPA reaffirmed its determination in April 2019, and then in 10 August 2019, stated that it would not approve herbicide labels 11 with a Proposition 65 warning, as such labels would be false and 12 misleading and “misbranded” under the federal herbicide labeling 13 law, 7 U.S.C. § 136a. 14 117-9, 1117-54).) 15 (Heering Decl. Exs. E, WW (Docket Nos. As a result of the IARC’s classification of glyphosate 16 as probably carcinogenic, the OEHHA listed glyphosate as a 17 chemical known to the state of California to cause cancer on July 18 7, 2017, and thus the attendant warning requirement was to take 19 effect on July 7, 2018. 20 117-40).) 21 requirement on February 26, 2018 (Docket No. 75), and thus at no 22 time have plaintiffs been required to post glyphosate Proposition 23 65 warnings for their products. 24 II. (See Heering Decl., Ex. II (Docket No. This court preliminarily enjoined the warning Procedural History 25 After a hearing, the court preliminarily enjoined the 26 27 28 Notably, the OEHHA had previously determined that there was insufficient evidence of glyphosate’s carcinogenicity. (See Heering Decl., Exs. P, Q (Docket Nos. 117-20, 117-21).) 5 6 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 6 of 34 1 Attorney General from enforcing California Health & Safety Code § 2 25249.6’s requirement that any person in the course of doing 3 business provide a clear and reasonable warning before exposing 4 any individual to glyphosate as against plaintiffs, plaintiffs’ 5 members, and all persons represented by plaintiffs. 6 75.) 7 Amendment challenge was ripe, because plaintiffs faced a 8 significant risk of injury based on, among other things, the 9 threat of private suits and the costs of testing their products 10 (Docket No. In doing so, the court first found that plaintiff’s First to avoid or defend such suits. 11 The court then found that a Proposition 65 warning for 12 glyphosate was not purely factual and uncontroversial under the 13 First Amendment, as required for compelled commercial speech 14 under Zauderer v. Office of Disciplinary Counsel of Supreme Court 15 of Ohio, 471 U.S. 626, 651 (1985), and CTIA-The Wireless 16 Association v. City of Berkeley, 854 F.3d 1105, 1117-19 (9th Cir. 17 2017) (“CTIA I”).7 18 Proposition 65 and its regulations required a warning stating 19 that the chemical was known to the State of California to cause 20 cancer, and this warning would be misleading to the ordinary 21 consumer because “[i]t is inherently misleading for a warning to The court explained, among other things, that 22 23 The Ninth Circuit’s 2017 decision in CTIA I was vacated by the Supreme Court and remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (“NIFLA”). 138 S. Ct. 2708 (2018). However, on remand, the panel issued a new decision that once again explained that “a statement may be literally true but nonetheless misleading and, in that sense, untrue.” CTIA-The Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 847 (9th Cir. 2019) (“CTIA II”), cert. denied, 140 S. Ct. 658 (2019). 6 7 24 25 26 27 28 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 7 of 34 1 state that a chemical is known to the state of California to 2 cause cancer based on the finding of one organization . . . when 3 apparently all other regulatory and governmental bodies have 4 found the opposite.” 5 not determine, and was not required to determine, (1) whether 6 glyphosate in fact caused cancer, (2) whether a statement that 7 glyphosate was known to cause cancer would be factual and 8 uncontroversial where there was more evidence in support of the 9 chemical’s carcinogenicity, or (3) whether Proposition 65’s 10 Id. at 16-17. In doing so, the court did statutory and regulatory regime was good policy. 11 The court subsequently denied defendant’s motion for 12 reconsideration under Federal Rule of Civil Procedure 59(e). 13 (Docket No. 97.) 14 clear error in its order granting a preliminary injunction. 15 Second, the court found that the much of the “new evidence” 16 introduced by defendant could have been presented in opposition 17 to the motion for a preliminary injunction, and the evidence 18 defendant relied on did not change the court’s conclusion that 19 the Proposition 65 warning as to glyphosate violated the First 20 Amendment. 21 warnings proposed by defendant because those warnings still 22 conveyed the message that glyphosate was known to cause cancer or 23 suggested that there was equal or more weight for the proposition 24 that glyphosate caused cancer than for the proposition that it 25 did not. 26 The court first held that it had not committed In doing so, the court rejected two alternative Plaintiffs now seek a permanent injunction barring 27 enforcement of the Proposition 65 warning as to glyphosate. 28 Defendant in response seeks a determination that plaintiffs’ 7 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 8 of 34 1 First Amendment claim fails as a matter of law.8 2 III. Ripeness 3 Defendant continues to argue that plaintiffs’ First 4 Amendment challenge is not ripe, despite the court’s prior 5 determination of ripeness in granting the preliminary injunction. 6 Courts must examine whether a case is ripe because their role “is 7 neither to issue advisory opinions nor to declare rights in 8 hypothetical cases, but to adjudicate live cases or controversies 9 consistent with the powers granted the judiciary in Article III 10 of the Constitution.” 11 220 F.3d 1134, 1138 (9th Cir. 2000). 12 Thomas v. Anchorage Equal Rights Comm’n, The ripeness inquiry includes both “constitutional” and 13 “prudential” components. 14 of standing, courts consider “whether the plaintiffs face a 15 realistic danger of sustaining direct injury as a result of the 16 statute’s operation or enforcement, or whether the alleged injury 17 is too imaginary or speculative to support jurisdiction.” 18 (citations and internal quotations omitted). 19 prudential component, courts consider (1) the fitness of the 20 issues for judicial decision and (2) the hardship to the parties 21 of withholding court consideration. 22 court once again finds that plaintiffs’ First Amendment challenge 23 is ripe under both the constitutional and prudential inquiries. 24 Id. Under the constitutional component Id. Under the Id. at 1142. Here, the First, plaintiffs still face a significant risk of 25 26 27 28 Plaintiffs do not address the other causes of action in the First Amended Complaint, specifically its claims under the Supremacy Clause of the U.S. Constitution and the Due Process Clause of the Fourteenth Amendment. The court expresses no opinion on those claims. 8 8 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 9 of 34 1 injury notwithstanding defendant’s claim that no warnings are 2 required for plaintiffs’ products because they likely contain 3 glyphosate levels below the “no significant risk level” (“NSRL” 4 or “safe harbor” level) that was adopted after the filing of this 5 case. 6 no warning is required for a product where an exposure poses no 7 significant risk assuming lifetime exposure at the level in 8 question, Cal. Health & Safety Code § 25249.10; (2) no warnings 9 are required if the daily exposure caused by a product is below The court recognizes that (1) Proposition 65 provides that 10 the OEHHA’s safe harbor level under Cal. Code Regs. tit. 27 § 11 25705; (3) the OEHHA adopted a safe harbor level of 1,100 12 micrograms per day for glyphosate on July 1, 2018, Cal. Code 13 Regs. tit. 27, § 25705; (4) some testing of certain foods has 14 found glyphosate levels that would lead to expected daily 15 exposure levels well below that threshold (Lee Decl. ¶¶ 13-21 16 (Docket No. 129)); and (5) some evidence indicates that consumer 17 use of glyphosate from home and garden use of glyphosate would 18 lead to daily exposure levels well below that threshold (Sandy 19 Decl. ¶ 5 (Docket No. 127)).9 20 Nevertheless, assuming plaintiffs’ products were tested 21 and found to contain concentrations of glyphosate below the safe 22 harbor level as set by Cal. Code. Regs. tit. 27 § 25705, 23 plaintiffs would still have no reasonable assurance that they 24 would not be subject to enforcement actions. 25 provided evidence that private plaintiffs have brought 26 27 Plaintiffs have Plaintiffs dispute the calculations of daily and lifetime exposure levels, as well as the cost and difficulty of testing products, though the court does not reach this issue. 9 28 9 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 10 of 34 1 enforcement actions for various chemicals notwithstanding a 2 defense of compliance with the safe harbor level for those 3 chemicals, including where the California Attorney General said a 4 proposed enforcement suit had no merit.10 5 statute allows any person to file an enforcement suit makes the 6 threat of such suits more credible. 7 List v. Driehaus, 134 S. Ct. 2334, 2345 (2014) (plaintiffs showed 8 credible risk of enforcement because, inter alia, the law at 9 issue allowed complaints from private parties who were not The fact that the See, e.g., Susan B. Anthony 10 “constrained by explicit guidelines or ethical obligations”); 11 Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1173 (9th Cir. 12 2018) (party had standing because “even if the Attorney General 13 would not enforce the law” at issue, private citizens had a right 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (See, e.g., Norris Decl. ¶¶ 10-12 (Docket No. 117-62) (discussing Physicians Comm. for Responsible Med. v. McDonald’s Corp., Los Angeles Superior Court, Case No. BC383722, a lawsuit lasting for 6 years brought against restaurants based on allegations that their cooked chicken exposed Californians to the listed carcinogen “PhIP,” despite a California Attorney General determination that the level of PhIP in cooked chicken fell far below the level that would require a warning under Proposition 65); Norris Decl. ¶¶ 30-33 (discussing Proposition 65 actions brought against restaurants and food companies notwithstanding safe harbor level for acrylamide set in 1990).) See also Sciortino v. PepsiCo, Inc., 108 F. Supp. 3d 780 (N.D. Cal. 2015) (denying motion to dismiss in Proposition 65 enforcement action where parties disputed whether defendant’s products exceeded the safe harbor level); Envtl. Law Found. v. Beech-Nut Nutrition Corp., 235 Cal. App. 4th 307, 314 (1st Dist. 2015) (discussing Proposition 65 enforcement action where safe harbor defense was litigated at trial and noting that defendants had the burden of showing that the level of chemicals in their products did not exceed the safe harbor); CKE Rests., Inc. v. Moore, 159 Cal. App. 4th 262 (2d Dist. 2008) (affirming dismissal of suit seeking declaration that private party could not initiate Proposition 65 litigation because safe harbor level was not exceeded). 10 28 10 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 11 of 34 1 of action to sue for damages). 2 Such suits, which can be brought notwithstanding the 3 Attorney General’s finding of no merit, are enabled by the 4 statute itself, as defendants in Proposition 65 enforcement 5 actions have the burden of showing that their product’s 6 glyphosate exposure falls below the no significant risk level in 7 a Proposition 65 enforcement action. 8 25249.10(c). 9 give no warning based on their constitutional right against 10 compelled speech, face a credible threat of enforcement as a 11 result of exercising such right, regardless of the enactment of 12 the safe harbor level for glyphosate.11 13 List, 134 S. Ct. at 2342-46 (plaintiff may bring pre-enforcement 14 suit where he has an intention to engage in a course of conduct 15 with an arguable constitutional interest but proscribed by law, 16 “and there exists a credible threat of prosecution”). Cal. Health & Safety Code § Thus, plaintiffs, who have stated they intend to See Susan B. Anthony 17 Defendant claims that enforcement actions would be 18 unlikely in the event that a product did not exceed the safe 19 The court also rejects the Attorney General’s contentions, raised for the first time in his reply in support of his cross motion, that plaintiffs have provided no evidence of any concrete plans to violate the law and that the First Amendment dispute is more appropriate for a state court enforcement action. (See Docket No. 150 at 4-7.) Even assuming these arguments were properly raised, (1) plaintiffs have already shown and continue to credibly claim that they have no intention of providing Proposition 65 warnings for glyphosate, and (2) plaintiffs need not wait for an enforcement action to challenge a state law on First Amendment grounds, notwithstanding the ability to raise the challenge as a defense to the enforcement action. Given the credible threat of enforcement, it is not necessary that plaintiffs first expose themselves to liability before challenging Proposition 65 on constitutional grounds. See Susan B. Anthony List, 134 S. Ct. at 2342-46. 11 11 20 21 22 23 24 25 26 27 28 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 12 of 34 1 harbor level for glyphosate, citing both the steps required to 2 file suit (which require 60 days’ notice and the filing of a 3 certificate of merit) and the fact that the Attorney General will 4 likely inform the private enforcer that (1) there was no 5 violation, (2) an action was not in the public interest, and (3) 6 the action would not warrant civil penalties and fees. 7 also notes that if the private enforcer refused to withdraw its 8 notice of violation, the Attorney General would then post a 9 letter on the Attorney General website stating that there was no Defendant 10 merit to the proposed enforcement action, and that plaintiffs may 11 be ordered to pay attorney’s fees and costs for frivolous 12 enforcement actions under Cal. Health & Safety Code § 13 25249.7(h)(2) and Cal. Code Civ. Proc. § 128.5. 14 Notwithstanding these purported barriers, one 15 California Court of Appeal has explained that the instigation of 16 Proposition 65 enforcement actions is “easy -- and almost 17 absurdly easy at the pleading stage and pretrial stages.” 18 Consumer Def. Grp. v. Rental Hous. Indus. Members, 137 Cal. App. 19 4th 1185, 1215 (4th Dist. 2006). 20 of attorney’s fees appears to be a modest deterrence to suits, if 21 any, given that this sanction is only available if the trial 22 court “determines that there was no actual or threatened exposure 23 to a listed chemical” at any level and also finds that “there was 24 no credible factual basis for the certifier’s belief that an 25 exposure to a listed chemical had occurred or was threated.” 26 Cal. Health & Safety Code § 25249.7(h)(2). 27 bring suit and avoid sanctions, a private plaintiff need only 28 credibly allege that that a product has some amount of the 12 See At best, the possible sanction In other words, to See Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 13 of 34 1 chemical at issue, not that the amount of the chemical is harmful 2 or that it exceeds the safe harbor level. 3 Further, in order to take advantage of the safe harbor, 4 plaintiffs would be required to test their products to determine 5 whether their products exceeded the safe harbor level, incurring 6 the attendant costs, which is in itself is a cognizable injury. 7 See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 8 154-55 (2010) (farmers seeking injunctive relief had standing 9 based on, inter alia, the cost of testing crops that would be 10 required if an injunction was not granted). 11 The court also rejects defendant’s contention that the 12 First Amendment challenge is unripe because defendants may defend 13 any enforcement action by showing their products do not pose a 14 significant cancer risk, even if their products exceed the safe 15 harbor level. 16 risk of enforcement actions, are cognizable injuries, even if a 17 business can ultimately prove that its product is not a cancer 18 risk. 19 46.12 Facing enforcement actions, or even the possible See, e.g., Susan B. Anthony List, 134 S. Ct. 2334 at 2342- 20 Based on the foregoing, the court will deny 21 defendant’s motion for summary judgment to the extent it seeks 22 dismissal based on ripeness. 23 IV. Merits 24 To determine whether the Proposition 65 requirement for 25 26 27 28 As they did in their motion for a preliminary injunction, plaintiffs claim that they will lose sales if they decline to provide warnings for their products. The court expresses no opinion as to this claim in determining that plaintiffs’ First Amendment claim is ripe. 13 12 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 14 of 34 1 glyphosate violates the First Amendment, the court must first 2 determine the level of scrutiny to apply -- intermediate scrutiny 3 under Central Hudson Gas & Electric Corp. v. Public Service 4 Commission, 447 U.S. 557 (1980), or a lower level of scrutiny 5 under Zauderer v. Office of Disciplinary Counsel of Supreme Court 6 of Ohio, 471 U.S. 626 (1985). 7 Under Central Hudson, the government may restrict 8 commercial speech “that is neither misleading nor connected to 9 unlawful activity, as long as the governmental interest in 10 regulating the speech is substantial.” 11 City & Cty. of San Francisco, 916 F.3d 749, 755 (9th Cir. 2019) 12 (quoting Central Hudson, 447 U.S. at 564). 13 intermediate level of scrutiny, the law at issue “must ‘directly 14 advance the governmental interest asserted’ and must not be ‘more 15 extensive than is necessary to serve that interest.’” 16 (quoting Central Hudson, 447 U.S. at 566). 17 Am. Beverage Ass’n v. Under this Id. However, a lower standard applies to certain compelled 18 commercial speech. 19 Court held that the government may require commercial speakers to 20 disclose “purely factual and uncontroversial information” about 21 commercial products or services, as long as the disclosure 22 requirements are “reasonably related” to a substantial government 23 interest and are neither “unjustified [n]or unduly burdensome.” 24 See also CTIA II, 928 F.3d at 842-43 (quoting Zauderer); Am. 25 Beverage Ass’n, 916 F.3d at 755 (same). 26 In Zauderer, 471 U.S. at 651, the Supreme The case law on the level of scrutiny for compelled 27 commercial speech is somewhat unsettled. 28 compelled commercial speech is subject to Central Hudson’s 14 Plaintiffs argue that Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 15 of 34 1 intermediate scrutiny if it cannot meet all the requirements of 2 Zauderer. 3 should first examine whether the compelled commercial speech 4 meets Zauderer’s lower standard, and if not, the court should 5 then proceed to examine whether it meets Central Hudson’s 6 requirements. 7 In other words, according to plaintiffs, a court However, neither the Supreme Court nor the Ninth 8 Circuit have elaborated such a rule, though they have hinted at 9 one. In NIFLA, the Supreme Court reviewed certain disclosure 10 requirements that applied to pro-choice pregnancy centers. The 11 court applied Zauderer’s lower scrutiny to one required 12 disclosure and found that the state had not shown that the 13 disclosure was not unjustified or unduly burdensome. 14 that determination, the court held that the disclosure violated 15 the First Amendment, without proceeding to examine whether the 16 provision also failed intermediate scrutiny. 17 78. 18 related disclosure rule under intermediate scrutiny, holding that 19 the Zauderer standard did not apply because “[t]he notice in no 20 way relates to the services that licensed clinics provide. 21 Instead, it requires these clinics to disclose information about 22 state-sponsored services -- including abortion, anything but an 23 ‘uncontroversial’ topic.” Having made 138 S. Ct. at 2377- At the same time, the NIFLA court examined a separate but 138 S. Ct. at 2372.13 24 25 26 27 28 In NIFLA, the court applied the Zauderer standard to a provision that required unlicensed pregnancy centers to disclose on-site and in all advertising that they were not licensed medical providers. The court applied intermediate scrutiny to a provision that required licensed pregnancy centers to disclose on-site and to all clients that the State of California provided free or low-cost family planning services, including abortion, as 15 13 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 16 of 34 1 After NIFLA was issued, the Ninth Circuit in American 2 Beverage explained that “Zauderer provides the appropriate 3 framework to analyze a First Amendment claim involving compelled 4 commercial speech.” 5 American Beverage reviewed the denial of a preliminary injunction 6 of an ordinance requiring warnings on advertisements for certain 7 sugar-sweetened beverages. 8 that the warning cover 20% of the advertisement imposed an undue 9 burden and thus failed Zauderer.14 916 F.3d at 756. The en banc panel in The court held that the requirement Having made this 10 determination, the court reversed the denial of a preliminary 11 injunction, without proceeding to determine whether the ordinance 12 withstood intermediate scrutiny under Central Hudson. 13 756-58. 14 Id. at In light of these cases, it appears that the court 15 should proceed to examine the warning requirement for glyphosate 16 under Zauderer’s lower standard only if the requirement is purely 17 factual and uncontroversial. 18 not apply here” because the warning requirement is not purely 19 factual and uncontroversial, see NIFLA, 138 S. Ct. at 2372, the 20 court should then proceed to examine the warning requirement 21 under Central Hudson’s intermediate scrutiny. 22 23 24 25 26 27 28 If “[t]he Zauderer standard does well as a telephone number to obtain information about such services. 138 S. Ct. at 2368-78. Finding that the warning requirement was unduly burdensome, the American Beverage en banc panel declined to examine whether the warning was factual and uncontroversial. 916 F.3d at 757. This determination follows NIFLA’s implied holding that if a disclosure requirement is unjustified or unduly burdensome, a court may assume that the Zauderer standard applies and need not examine the disclosure requirement under intermediate scrutiny. See NIFLA, 138 S. Ct. at 2376-77. 16 14 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 17 of 34 1 A. Does Zauderer apply? 2 Before determining whether the Proposition 65 warning 3 requirement survives under Zauderer’s lower scrutiny, the court 4 must determine whether Zauderer even applies. 5 above, Zauderer applies where the government requires speakers to 6 disclose “purely factual and uncontroversial information” about 7 commercial products or services. 8 NIFLA, 138 S. Ct. at 2372. 9 case is whether the compelled disclosure is of purely factual and As discussed Zauderer, 471 U.S. at 651; The primary dispute in the present 10 uncontroversial information. 11 demonstrating that a disclosure requirement is purely factual and 12 uncontroversial, not unduly burdensome, and reasonably related to 13 a substantial government interest. 14 641; Ibanez v. Fla. Dep’t of Bus. & Prof’l Regulation, Bd. of 15 Accountancy, 512 U.S. 136, 146 (1994); Am. Beverage, 916 F.3d at 16 756 17 The State has the burden of See Zauderer, 471 U.S. at What “purely factual and uncontroversial” means has not 18 been completely explained by the Supreme Court or the Ninth 19 Circuit. 20 that “uncontroversial” “refers to the factual accuracy of the 21 compelled disclosure, not to its subjective impact on the 22 audience.” 23 Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 732 (9th Cir. 2017) 24 (quoting CTIA I). 25 F.3d 518, 527-530 & n.28 (D.C. Cir. 2015) (stating a “purely 26 factual” proposition must also be accurate, and thus 27 controversial must mean “communicating a message that is 28 controversial for some reason other than [a] dispute about simple The Ninth Circuit previously stated in this context CTIA I, 854 F.3d at 1117-18; see also Nationwide But see Nat’l Ass’n of Mfrs. v. S.E.C., 800 17 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 18 of 34 1 factual accuracy”) (quoting Am. Meat Inst. v. U.S. Dep’t of 2 Agric., 760 F.3d 18, 27 (D.C. Cir. 2014) (internal punctuation 3 omitted)). 4 the Supreme Court for further consideration in light of NIFLA, 5 and the panel’s opinion on remand did not repeat its prior rule 6 that “controversial” under Zauderer means factually accurate. 7 See CTIA II, 928 F.3d at 846-48. 8 9 However, that decision was reversed and remanded by In NIFLA, the Supreme Court held that a state law requiring pro-life pregnancy centers to post information about 10 state-provided pregnancy services, including abortion, was 11 controversial. 12 explained in CTIA II that NIFLA did not state “broadly that any 13 purely factual statement that can be tied in some way to a 14 controversial issue is, for that reason alone, controversial.” 15 CTIA II, 928 F.3d at 845. 16 controversial under Zauderer because the disclosure, while 17 factual, “took sides in a heated political controversy, forcing 18 the clinic to convey a message fundamentally at odds with its 19 mission.” 20 that “a statement may be literally true but nonetheless 21 misleading and, in that sense, untrue” and therefore not meet 22 Zauderer’s requirements. 23 F.3d at 1119; see also Am. Meat Inst., 760 F.3d at 27 24 (recognizing the possibility that “some required factual 25 disclosures could be so one-sided or incomplete that they would 26 not qualify as ‘factual and uncontroversial’”) (citation 27 omitted). 28 Id. 138 S. Ct. at 2372. However, the Ninth Circuit Rather, the compelled notice was The CTIA II court also explained, once again, CTIA II, 928 F.3d at 847; CTIA I, 854 This court has previously found that the Proposition 65 18 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 19 of 34 1 warning requirement for glyphosate was false and misleading given 2 the weight of authority showing that glyphosate was not known to 3 cause cancer and did not cause cancer. 4 (and citations therein); Docket No. 97 at 4-9.) 5 been some new developments since the court granted the 6 preliminary injunction, these developments do not change the 7 court’s conclusion that the Proposition 65 warning requirement 8 for glyphosate is misleading and therefore not purely factual and 9 uncontroversial. 10 (Docket No. 75 at 13-17 While there have First, the court continues to find that the current 11 language of the full “safe harbor” warning is false and 12 misleading when used for glyphosate. 13 a business to state that glyphosate “is known to the state of 14 California to cause cancer.” 15 25603(a). 16 language stating “WARNING: Cancer - www.P65Warnings.ca.gov.”, 17 Cal. Code Regs. tit. 27, § 25603(b), similarly conveys the 18 message glyphosate is known to cause and actually causes cancer. 19 That warning would require Cal. Code Regs. tit. 27, § The “short form” safe harbor warning, which requires The court’s initial conclusion remains the same. 20 Notwithstanding the IARC’s determination that glyphosate is a 21 “probable carcinogen,” the statement that glyphosate is “known to 22 the state of California to cause cancer” is misleading. 23 regulator of which the court is aware, with the sole exception of 24 the IARC, has found that glyphosate does not cause cancer or that 25 there is insufficient evidence to show that it does. 26 Heering Decl., Exs. N, R, S, T, U, Z, AA, MM, NN, OO, PP, QQ, RR, 27 SS, WW, XX, CCC.) 28 technically “knows” that glyphosate causes cancer as the State Every (See While it may be literally true that California 19 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 20 of 34 1 has defined that term in the statute and regulations, the 2 required warning would nonetheless be misleading to the ordinary 3 consumer. 4 San Francisco, 827 F. Supp. 2d 1054, 1062-63 (N.D. Cal. 2011), 5 aff’d, 494 F. App’x 752 (9th Cir. 2012) (granting preliminary 6 injunction in part because required fact sheet was misleading 7 because it failed “to explain the limited significance of WHO 8 ‘possible carcinogen’ classification,” which implied that 9 radiofrequency energy from cell phones was “more dangerous than See, e.g., CTIA-The Wireless Ass’n v. City & Cty. of 10 it really is,” and explaining that the fact sheet should state 11 that “RF Energy has been classified by the World Health 12 Organization as a possible carcinogen rather than as a known 13 carcinogen or a probable carcinogen and studies continue to 14 assess the potential health effects of cell phones.”). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As the court stated in granting a preliminary injunction, Ordinary consumers do not interpret warnings in accordance with a complex web of statutes, regulations, and court decisions, and the most obvious reading of the Proposition 65 cancer warning is that exposure to glyphosate in fact causes cancer. A reasonable consumer may understand that if the warning says “known to cause cancer,” there could be a small minority of studies or experts disputing whether the substance in fact causes cancer. However, a reasonable consumer would not understand that a substance is “known to cause cancer” where only one health organization had found that the substance in question causes cancer and virtually all other government agencies and health organizations that have reviewed studies on the chemical had found there was no evidence that it caused cancer. Under these facts, the message that glyphosate is known to cause cancer is misleading at best. (Docket No. 97 at 14.) The D.C. Circuit’s discussion in National Association 20 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 21 of 34 1 of Manufacturers v. S.E.C., 800 F.3d 518 (D.C. Cir. 2015), is 2 instructive. 3 using certain minerals originating in the Democratic Republic of 4 Congo to disclose on their website their products have “not been 5 found to be DRC conflict free.” 6 that the SEC could not rely on the statutory definition of 7 “conflict free” to prove that a disclosure was factual and 8 uncontroversial, because otherwise “there would be no end to the 9 government’s ability to skew public debate by forcing companies There, the SEC enacted a rule mandating companies Id. at 530. The court explained 10 to use the government’s preferred language.” Id. at 530. 11 Similarly, here, the State of California may not skew the public 12 debate by forcing companies to adopt the state’s determination 13 that glyphosate is a carcinogen, relying solely on the IARC’s 14 determination, when the great weight of evidence indicates that 15 glyphosate is not known to cause cancer. 16 1. New Evidence 17 The new evidence introduced by defendant on summary 18 judgment does not change this determination that the warning 19 requirement as to glyphosate is misleading. 20 there have been additional studies suggesting a link between 21 glyphosate and cancer, or the fact that there has been some 22 criticism of the EPA’s finding that glyphosate was not a cancer 23 risk, does not establish that California knows that glyphosate 24 causes cancer. 25 therein).) 26 remains that every government regulator of which the court is 27 aware, with the exception of the IARC, has found that there was 28 no or insufficient evidence that glyphosate causes cancer. First, the fact that (See Docket No. 124 at 14-25 (and citations Notwithstanding this additional evidence, the fact 21 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 22 of 34 1 Indeed, the EPA, which Proposition 65 relies on as one of five 2 authoritative bodies for identifying carcinogens, reaffirmed this 3 determination in 2019, noting its vigorous disagreement with the 4 IARC, and stating that a Proposition 65 warning for glyphosate 5 would be false and misleading and would violate the federal 6 herbicide labeling law, 7 U.S.C. § 136a. 7 WW.) 8 9 (Heering Decl. Exs. E, This court does not express an opinion as to the criticisms the parties lodge against the IARC on one hand, and 10 the EPA on the other. “Once again, the court’s analysis here is 11 not whether the IARC’s determination is persuasive or supported 12 by competent evidence, but rather whether a warning conveying the 13 message that glyphosate causes cancer is factual and 14 uncontroversial.” (Docket No. 97 at 5.) 15 Second, the California Court of Appeal’s decision in 16 Monsanto v. OEHHA, 22 Cal. App. 5th 534 (5th Dist. 2018), does 17 not affect the court’s analysis. 18 placement of glyphosate on the Proposition 65 carcinogen list due 19 to the IARC classification of glyphosate as a probable 20 carcinogen. 21 motion for a preliminary injunction that it is Proposition 65’s 22 warning requirement that posed First Amendment concerns, not 23 Proposition 65’s list of carcinogens, which is government speech. 24 (Docket No. 75 at 11.) 25 Monsanto decision in its order denying defendant’s motion to 26 reconsider, noting that that case did not address the First 27 Amendment and thus had no relevance as to whether the warning 28 requirement with respect to glyphosate was factual and Monsanto concerned the However, this court has already pointed out on the Also, this court already addressed the 22 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 23 of 34 1 uncontroversial. 2 finding, and need not make any, as to the general trustworthiness 3 or reliability of the IARC in order to determine that the 4 glyphosate warning requirement is misleading, in light of the 5 heavy weight of authority stating that glyphosate does not cause 6 cancer. 7 (Docket No. 97 at 4-5.) This court has made no Third, the OEHHA’s formal adoption of a regulation 8 setting a safe harbor level for glyphosate does not change the 9 court’s analysis. As the court has already explained, the no 10 significant risk level only provides an affirmative defense for a 11 business when faced with a Proposition 65 enforcement action, and 12 it has no relevance as to whether the warning requirement is 13 factual and uncontroversial. 14 (Docket 97 at 4-5.) Fourth, the fact that there have been three jury 15 verdicts against Monsanto based on glyphosate does not render the 16 warning purely factual and uncontroversial. 17 cases were tasked with determining whether the evidence, as 18 presented in those cases, showed that it was more likely than not 19 that glyphosate caused cancer in those plaintiffs. 20 juries ultimately decided that it did, whether a reasonable juror 21 could find that glyphosate causes cancer is a separate question 22 facing the court today -- whether a statement that glyphosate is 23 known to cause cancer is purely factual and uncontroversial.15 24 Given the full body of evidence before the court, such a 25 statement is at a minimum misleading and therefore not factual 26 and uncontroversial. 27 28 The juries in those While those Those cases are also on appeal, so it is not clear that the verdicts will ultimately stand. 23 15 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 24 of 34 1 2. Alternative Warnings 2 Defendant attempts to salvage the Proposition 65 3 warning by noting that the statute only requires “clear and 4 reasonable” warnings, not the particular language of the safe 5 harbor warning. 6 counsel for defendant rejected multiple alternative warnings 7 suggested by the court which would provide more context or use 8 more accurate language, claiming that the additional language 9 would “dilute” the warning. However, at the preliminary injunction hearing, (Hr’g Tr. at 51 (Docket No. 72).) 10 Since then, the Attorney General has suggested three of his own 11 alternative warnings. 12 their own, as will be discussed below.16 13 is the fact that the state simply cannot put the burden on 14 commercial speakers to draft a warning that both protects their 15 right not to speak and complies with Proposition 65. 16 Illinois ex rel. Madigan v. Telemktg. Assocs., Inc., 538 U.S. 17 600, 620 n.9 (2003) (“[T]o avoid chilling protected speech, the 18 government must bear the burden of proving that the speech it 19 seeks to prohibit is unprotected.”) (citations omitted). 20 Each of these warnings are deficient on More important, however, Accord As this court has already stated, it appears that any 21 glyphosate warning which does not compel a business to make 22 misleading statements about glyphosate’s carcinogenicity would 23 likely violate the Attorney General’s own guidelines for approval 24 of Proposition 65 enforcement action settlements. 25 No. 97 at 9 n.7 (noting that under Cal. Code Regs. tit. 11 § (See Docket 26 27 28 Although the court addressed the first two alternative warnings on the motion to reconsider, the court will revisit that discussion on summary judgment, out of an abundance of caution. 24 16 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 25 of 34 1 3202(b), certain words and phrases are per se not clear and 2 reasonable, “such as (1) use of the adverb ‘may’ to modify 3 whether the chemical causes cancer” and “(2) additional words or 4 phrases that contradict or obfuscate otherwise acceptable warning 5 language”).) 6 At the same time, the safe harbor regulations prohibit 7 providing any additional information in the warning other than 8 the source of the exposure or “information on how to avoid or 9 reduce exposure to the identified chemical.”17 Cal. Code Regs. 10 tit. 27, § 25601. 11 enjoy the protection of the safe harbor warning and would still 12 face the threat of suits from private enforcers if it added, for 13 example, language discussing the debate regarding glyphosate’s 14 carcinogenicity, unless the business was a party to a court order 15 approving the particular language. 16 § 25600(e) (“A person that is a party to a court-ordered 17 settlement or final judgment establishing a warning method or 18 content is deemed to be providing a ‘clear and reasonable’ 19 warning for that exposure for purposes of this article, if the 20 warning complies with the order or judgment.”). 21 Given that restriction, a business would not See Cal. Code Regs. tit. 27, The court cannot condone the state’s approach here, 22 where it continues to argue that the warning requirement poses no 23 First Amendment concerns and then repeatedly proposes iterations 24 of alternative warnings that the state would never allow under 25 normal circumstances, absent this lawsuit. 26 27 28 Even assuming the These regulations also distinguish the Proposition 65 warning from the regulation at issue in CTIA II, which allowed retailers to add to the compelled disclosure. See 928 F.3d at 848. 25 17 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 26 of 34 1 state may continue to propose alternative warnings, as it has in 2 this case, none of them qualify as purely factual and 3 uncontroversial. 4 Defendant’s first proposed warning states: “WARNING: 5 This product can expose you to glyphosate, a chemical listed as 6 causing cancer pursuant to the requirements of California law. 7 For more information go to www.P65Warnings.ca.gov.” 8 81-1 at 10). 9 “pursuant to the requirements of California law” conveys (Docket No. Stating that a chemical is listed as causing cancer 10 essentially the same message to consumers as stating that a 11 chemical is known to the state of California to cause cancer, and 12 thus is misleading for the same reason as the safe harbor 13 warning. 14 simply pointing consumers to a website discussing the debate. Further, California cannot remedy this warning by 15 Defendant’s second proposed warning does provide 16 additional context regarding the debate as to glyphosate’s 17 carcinogenicity, stating: 18 19 20 21 22 23 24 25 26 27 28 WARNING: This product can expose you to glyphosate, a chemical listed as causing cancer pursuant to the requirements of California law. The listing is based on a determination by the United Nations International Agency for Research on Cancer that glyphosate presents a cancer hazard. The U.S. Environmental Protection Agency has tentatively concluded in a draft document that glyphosate does not present a cancer hazard. For more information go to www.P65warnings.ca.gov. (Docket No. 81-1 at 12.) As the court discussed on the motion for reconsideration, this warning is deficient “because it conveys the message that there is equal weight of authority for and against the proposition that glyphosate causes cancer, or that 26 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 27 of 34 1 there is more evidence that it does . . . when the heavy weight 2 of evidence in the record is that glyphosate is not known to 3 cause cancer.” 4 5 6 7 8 9 10 11 12 (Docket No. 97 at 9.) Defendant’s third alternative warning fails for similar reasons. That warning states: WARNING: This product can expose you to glyphosate. The State of California has determined that glyphosate is known to cause cancer under Proposition 65 because the International Agency for Research on Cancer has classified it as a carcinogen, concluding that there is sufficient evidence of carcinogenicity from studies in experimental animals and limited evidence in humans, and that it is probably carcinogenic to humans. The EPA has concluded that glyphosate is not likely to be carcinogenic to humans. For more information about glyphosate and Proposition 65, see www.P65warnings.ca.gov. 13 (Docket No. 124 at 59.) 14 the IARC’s findings, noting that there was “limited evidence in 15 humans” and that glyphosate is “probably carcinogenic.”18 16 However, it once again states that glyphosate is known to cause 17 cancer and conveys the message that there is equal weight for and 18 against the authority that glyphosate causes cancer, when the 19 weight of evidence is that glyphosate does not cause cancer. 20 This warning does give some context to Defendant relies heavily on the Ninth Circuit’s 21 decision in CTIA II, to support his contention that this third 22 warning is permissible under Zauderer, though that case is 23 distinguishable. 24 warning stating: In CTIA II, the panel majority approved a 25 26 27 28 Once again, the court questions whether a nuanced warning regarding glyphosate, especially one as lengthy as the Attorney General’s third alternative warning, can comply with the Proposition 65 regulations and the statute’s requirements of a “clear and reasonable” warning. 27 18 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 28 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To assure safety, the Federal Government requires that cell phones meet radio-frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely. 928 F.3d at 838. Rather than stating that cell phones are known to cause cancer, or known to cause some other adverse health condition, the CTIA II warning only pointed to federal guidelines regarding radio-frequency guidelines, and stated that certain uses of cell phones would cause the user to exceed those guidelines. The disclosure did not make any claims that failure to comply with those guidelines would cause any particular effect, other than imply that compliance with the guidelines was necessary for “safety.” In contrast, the original cell phone warning required by San Francisco in a related cell phone warning case would have stated, among other things, “ALTHOUGH STUDIES CONTINUE TO ASSESS POTENTIAL HEALTH EFFECTS OF MOBILE PHONE USE, THE WORLD HEALTH ORGANIZATION HAS CLASSIFIED RF ENERGY AS A POSSIBLE CARCINOGEN.” CTIA-The Wireless Ass’n v. City & Cty. of San Francisco, 827 F. Supp. 2d 1054, 1058 (9th Cir. 2011), aff’d, 494 F. App’x 752 (9th Cir. 2012). This warning, making a similar claim about an IARC probable carcinogen determination, was rejected as misleading by the district court, a determination that was affirmed by the Ninth Circuit in a memorandum disposition. Id. at 1061-63. Thus, the Ninth Circuit’s approval of the warning in CTIA II does not show that the third alternative warning proposed by defendant is purely factual and uncontroversial. 28 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 29 of 34 1 The law does not require a warning label to disclose in 2 full the debate regarding glyphosate’s carcinogenicity, and there 3 need not be complete consensus among the scientific community 4 before a warning may be required. 5 City of Berkeley, 139 F. Supp. 3d 1048, 1071-72 (N.D. Cal. 2015). 6 Given the evidence in the record, however, warnings which state 7 that glyphosate is known to cause cancer are not purely factual 8 and uncontroversial. 9 not apply, and the Proposition 65 warning as to glyphosate must 10 11 See CTIA-The Wireless Ass’n v. Accordingly, Zauderer’s lower scrutiny does satisfy intermediate scrutiny.19 B. 12 Intermediate Scrutiny Having determined that Zauderer’s lower standard does 13 not apply to the glyphosate warning requirement because it is not 14 purely factual and uncontroversial, the court deems it 15 appropriate to now consider whether the warning requirement 16 satisfies intermediate scrutiny. 17 755 (citing Central Hudson, 447 U.S. at 564). 18 scrutiny, the law must “directly advance the governmental 19 interested asserted and must not be more extensive than is 20 necessary to serve that interest.” 21 447 U.S. at 566). 22 that the harms it recites are real and that its restriction will 23 in fact alleviate them to a material degree.” 24 at 136. See Am. Beverage, 916 F.3d at Under intermediate Id. (citing Central Hudson, The government has the burden to “demonstrate Ibanez, 512 U.S. 25 26 27 28 Because the court finds that Zauderer does not apply because the warning is not purely factual and uncontroversial, the court does not reach the question of whether the warning is reasonably related to a substantial government interest or imposes an undue burden. 29 19 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 30 of 34 1 Here, defendant has neither shown that Proposition 65’s 2 warning requirement, as applied to glyphosate, directly advances 3 the asserted government interest, nor that it is not more 4 extensive than necessary to achieve that interest. 5 for Proposition 65 warning requirement, as stated in preamble to 6 the proposed act, was to inform the people of California “about 7 exposures to chemicals that cause cancer.” 8 WW (Docket No. 138-23).) 9 Brown, 196 Cal. App. 4th 233, 258 (1st Dist. 2011) (quoting The purpose (Zuckerman Decl., Ex. See also Cal. Chamber of Commerce v. 10 Proposition 65 Section 1). 11 substantial interest. 12 glyphosate’s carcinogenicity, and the state’s knowledge of that 13 purported carcinogenicity, do not directly advance that 14 interest.20 15 The court agrees that this is a However, misleading statements about Moreover, California has options available to inform 16 consumers of its determination that glyphosate is a carcinogen, 17 without burdening the free speech of businesses, including 18 advertising campaigns or posting information on the Internet. 19 See, e.g., NIFLA, 138 S. Ct. at 2376 (noting that even assuming 20 an advertising campaign would be less effective at broadcasting 21 California’s message than mandated disclosures, the state may not 22 “co-opt” businesses “to deliver its message for it,” because 23 24 25 26 27 28 Ironically, the Attorney General, while arguing that glyphosate is a carcinogen, has argued that the likely amount of glyphosate that the average consumer will be exposed to is orders of magnitude lower than would be required to exceed the state’s no significant risk level. In other words, defendant on the one hand proclaims the need to broadcast glyphosate’s cancer risk while at the same time declaring there is no risk for the vast majority of consumers. 30 20 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 31 of 34 1 “[t]he First Amendment does not permit the State to sacrifice 2 speech for efficiency”) (citation omitted). 3 Proposition 65’s warning requirement as to glyphosate fails 4 intermediate scrutiny under the First Amendment, and the court 5 will grant summary judgment for plaintiffs.21 6 V. Accordingly, Permanent Injunction 7 Having determined that Proposition 65’s warning 8 requirement as to glyphosate violates the First Amendment, the 9 court turns to whether a permanent injunction is appropriate. To 10 obtain a permanent injunction, a plaintiff “must demonstrate: (1) 11 that it has suffered an irreparable injury; (2) that remedies 12 available at law, such as monetary damages, are inadequate to 13 compensate for that injury; (3) that, considering the balance of 14 hardships between the plaintiff and defendant, a remedy in equity 15 is warranted; and (4) that the public interest would not be 16 disserved by a permanent injunction.” 17 L.L.C., 547 U.S. 388, 391 (2006). 18 injunction is essentially the same as for a preliminary 19 injunction, with the exception that the plaintiff must show 20 actual success, rather than a likelihood of success. 21 Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987). 22 Here, the court’s analysis of the permanent injunction factors 23 largely repeats its analysis from its order granting a eBay Inc. v. MercExchange, The standard for a permanent See Amoco 24 25 26 27 28 The Attorney General also seeks summary judgment as to whether Proposition 65’ warning requirement is unconstitutionally vague. However, the Amended Complaint does not assert a void for vagueness claim, and defendant did not assert a counterclaim seeking declaratory relief as to whether the warning requirement was unconstitutionally vague. Accordingly, the court will deny defendant’s cross motion for summary judgment as to vagueness. 31 21 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 32 of 34 1 preliminary injunction. 2 Because “[t]he loss of First Amendment freedoms, for 3 even minimal periods of time, unquestionably constitutes 4 irreparable injury,” Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 5 828 (9th Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347, 373 6 (1976)), and plaintiffs have prevailed on their First Amendment 7 claim, they have established that they will likely suffer 8 irreparable harm for which there are no adequate legal remedies 9 if the warning requirement is not enjoined as to glyphosate.22 10 When the government is a party, the balance of equities 11 and public interest factors merge. 12 Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. 13 Holder, 556 U.S. 418, 435 (2009)). 14 equities, the court must “balance the interests of all parties 15 and weigh the damage to each.” 16 F.3d 1109, 1138 (9th Cir. 2009) (citation omitted). 17 Drakes Bay Oyster Co. v. To determine the balance of Stormans, Inc. v. Selecky, 586 The court recognizes that the state has a significant 18 interest in protecting its citizens and informing them of 19 possible health risks, but the Ninth Circuit has “consistently 20 recognized the significant public interest in upholding First 21 Amendment principles.” Doe v. Harris, 772 F.3d 563, 583 (9th 22 23 24 25 26 27 28 Plaintiffs also contend that the warning requirement will cause several other irreparable harms, including damage to the reputation and goodwill of plaintiffs and their products, loss of customers, and disruption to supply chains and existing business practices. Plaintiffs further claim that they have no legal remedies because California is not subject to damages under sovereign immunity. Because the court finds that plaintiffs have shown a likelihood of irreparable harm and inadequate legal remedies based on the infringement of their First Amendment rights, the court need not specifically address these arguments. 32 22 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 33 of 34 1 Cir. 2014) (quoting Sammartano v. First Judicial Dist. Court, 303 2 F.3d 959, 974 (9th Cir. 2002)). 3 legitimate interest in enforcing an unconstitutional” law. 4 KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th 5 Cir. 2006). 6 also undermines California’s interest in accurately informing its 7 citizens of health risks at the expense of plaintiffs’ First 8 Amendment rights. 9 public interest weigh in favor of permanently enjoining 10 Further, California “has no See Providing misleading or false labels to consumers Accordingly, the balance of equities and Proposition 65’s warning requirement for glyphosate. 11 As plaintiffs have prevailed on the merits of their 12 First Amendment claim, are likely to suffer irreparable harm 13 absent an injunction, and have shown that the balance of equities 14 and public interest favor an injunction, the court will grant 15 plaintiffs’ request to permanently enjoin Proposition 65’s 16 warning requirement as to glyphosate.23 17 IT IS THEREFORE ORDERED that plaintiffs’ Motion for 18 Summary Judgment (Docket No. 117) be, and the same hereby is, 19 Plaintiffs’ Notice of Motion and proposed order also request that the court permanently enjoin defendant or anyone in privity with him from threatening to enforce Proposition 65’s warning requirement for glyphosate. (See Notice of Mot. Summ. J. at 1 (Docket No. 117); Proposed Order (Docket No. 1117-79); see also Am. Compl. Prayer for Relief ¶ 4) (requesting injunction against anyone enforcing or threatening to enforce the warning requirement as to glyphosate).) This request may have been inadvertently included, as it does not appear to have been mentioned in plaintiffs’ memorandum in support of the motion or plaintiffs’ reply. More importantly, plaintiffs provide no support for the contention that threats of enforcement should be enjoined, and such request raises concerns about the First Amendment rights of defendant and those in privity with him. Accordingly, the court’s injunction does not address threats of enforcement of Proposition 65. 33 23 20 21 22 23 24 25 26 27 28 Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 34 of 34 1 GRANTED. Defendant’s Cross Motion for Summary Judgment (Docket 2 No. 124) is DENIED. 3 IT IS FURTHER ORDERED that plaintiffs’ request for a 4 permanent injunction enjoining the warning requirement of 5 California Health & Safety Code § 25249.6 as to glyphosate is 6 GRANTED. 7 entities in privity with him, and anyone acting in concert with 8 him are hereby ENJOINED from enforcing as against plaintiffs, 9 plaintiffs’ members, and all persons represented by plaintiffs, Defendant, his agents and employees, all persons or 10 California Health & Safety Code § 25249.6’s requirement that any 11 person in the course of doing business provide a clear and 12 reasonable warning before exposing any individual to glyphosate. 13 Dated: June 22, 2020 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34

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