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.)

Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 1 of 34
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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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,

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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.

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----oo0oo---This case concerns California’s Proposition 65, which,

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Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 2 of 34
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among other things, requires warning labels for products

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containing chemicals known to the state of California to cause

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cancer, as determined by certain outside entities.

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have filed cross motions for summary judgment on plaintiffs’

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claim that the warning requirement, as applied to the chemical

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glyphosate,1 violates the First Amendment of the United States

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Constitution.2

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I.

The parties

(Docket Nos. 117, 124.)

Background

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Under Proposition 65, the Safe Drinking Water and Toxic

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Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.5-

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25249.14 (“Proposition 65”), the Governor of California is

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required to publish a list of chemicals (the “Proposition 65

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list”) known to the State to cause cancer, as determined by,

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inter alia, certain outside entities, including the United States

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Environmental Protection Agency (“EPA”), the United States Food

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and Drug Administration (“FDA”), and the International Agency for

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Research on Cancer (“IARC”).3

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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.)
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The IARC was founded in 1965 as the cancer
research arm of the United Nations’ World Health Organization and
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App. 3d 425, 431-34 (3d Dist. 1989) (citing, inter alia, Cal.

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Labor Code 6382(b)(1)); see also Cal. Code Regs. tit. 27 §§

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25306(m), 25904(b)4 (“A chemical or substance shall be included

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on the list [of chemicals known to the state to cause cancer] if

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it is classified by the International Agency for Research on

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Cancer” as “carcinogenic to humans” or “[p]robably carcinogenic

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to humans” and there is “sufficient evidence of carcinogenicity

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in experimental animals.”).5

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Proposition 65 also prohibits any person in the course

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of doing business from knowingly and intentionally exposing

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anyone to the listed chemicals without a prior “clear and

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reasonable” warning, with this prohibition taking effect 12

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months after the chemical has been listed.

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Code §§ 25249.6, 25249.10(b); Deukmejian, 212 Cal. App. 3d at

Cal. Health & Safety

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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.
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431-34.

While the statute does not explain what constitutes a

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clear and reasonable warning, OEHHA regulations provide two “safe

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harbor” warnings which are per se clear and reasonable.

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first safe harbor warning contains a black exclamation point in a

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yellow triangle with the words “WARNING: This product can expose

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you to chemicals including [name of one or more chemicals], which

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is [are] known to the State of California to cause cancer.

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more information go to www.P65Warnings.ca.gov.”

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tit. 27, § 25603(a).

The

For

Cal. Code Regs.

The second safe harbor warning, the “short

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form” warning, includes a black exclamation point in a yellow

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triangle and the words “WARNING: Cancer –

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www.P65Warnings.ca.gov.”

Cal. Code Regs. tit. 27, § 25603(b).

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Failure to comply with Proposition 65 may result in

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penalties up to $2,500 per day for each failure to provide an

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adequate warning, and enforcement actions may be brought by the

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California Attorney General, district attorneys, certain city

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attorneys and city prosecutors, or private citizens, who may

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recover attorney’s fees.

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Cal. Code Regs. tit. 11 § 3201.

Cal. Health & Safety Code § 25249.7;

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In 2015, the IARC classified glyphosate as “probably

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carcinogenic” to humans based on “sufficient evidence” that it

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caused cancer in experimental animals and “limited evidence” that

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it could cause cancer in humans.

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361-99 (Docket No. 134-4, 134-5).)

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organizations, including the EPA, other agencies within the World

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Health Organization, and government regulators from multiple

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countries, have concluded that there is insufficient or no

(Zuckerman Decl., Ex. A, at

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4

However, several other

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evidence that glyphosate causes cancer.6

(Heering Decl. (Docket

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No. 117-4), Exs. N, R, S, T, U, Z, AA, MM, NN, OO, PP, QQ, RR,

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SS, WW, XX, CCC (Docket Nos. 117-18, 117-22 to 117-25, 117-31,

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117-32, 117-44 to 117-50, 117-54, 117-55, 117-60) (reports or

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findings from, inter alia, the EPA, European Commission Health &

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Consumer Protection Directorate-General, WHO Int’l Programme on

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Chem. Safety, Germany, U.N. Food & Agric. Org., Canada, European

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Chems. Agency, Australia, New Zealand, Japan, and South Korea).

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The EPA reaffirmed its determination in April 2019, and then in

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August 2019, stated that it would not approve herbicide labels

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with a Proposition 65 warning, as such labels would be false and

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misleading and “misbranded” under the federal herbicide labeling

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law, 7 U.S.C. § 136a.

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117-9, 1117-54).)

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(Heering Decl. Exs. E, WW (Docket Nos.

As a result of the IARC’s classification of glyphosate

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as probably carcinogenic, the OEHHA listed glyphosate as a

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chemical known to the state of California to cause cancer on July

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7, 2017, and thus the attendant warning requirement was to take

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effect on July 7, 2018.

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117-40).)

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requirement on February 26, 2018 (Docket No. 75), and thus at no

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time have plaintiffs been required to post glyphosate Proposition

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65 warnings for their products.

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II.

(See Heering Decl., Ex. II (Docket No.

This court preliminarily enjoined the warning

Procedural History

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After a hearing, the court preliminarily enjoined the

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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).)
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Attorney General from enforcing California Health & Safety Code §

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25249.6’s requirement that any person in the course of doing

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business provide a clear and reasonable warning before exposing

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any individual to glyphosate as against plaintiffs, plaintiffs’

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members, and all persons represented by plaintiffs.

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75.)

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Amendment challenge was ripe, because plaintiffs faced a

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significant risk of injury based on, among other things, the

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threat of private suits and the costs of testing their products

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(Docket No.

In doing so, the court first found that plaintiff’s First

to avoid or defend such suits.

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The court then found that a Proposition 65 warning for

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glyphosate was not purely factual and uncontroversial under the

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First Amendment, as required for compelled commercial speech

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under Zauderer v. Office of Disciplinary Counsel of Supreme Court

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of Ohio, 471 U.S. 626, 651 (1985), and CTIA-The Wireless

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Association v. City of Berkeley, 854 F.3d 1105, 1117-19 (9th Cir.

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2017) (“CTIA I”).7

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Proposition 65 and its regulations required a warning stating

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that the chemical was known to the State of California to cause

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cancer, and this warning would be misleading to the ordinary

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consumer because “[i]t is inherently misleading for a warning to

The court explained, among other things, that

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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).
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state that a chemical is known to the state of California to

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cause cancer based on the finding of one organization . . . when

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apparently all other regulatory and governmental bodies have

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found the opposite.”

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not determine, and was not required to determine, (1) whether

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glyphosate in fact caused cancer, (2) whether a statement that

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glyphosate was known to cause cancer would be factual and

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uncontroversial where there was more evidence in support of the

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chemical’s carcinogenicity, or (3) whether Proposition 65’s

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Id. at 16-17.

In doing so, the court did

statutory and regulatory regime was good policy.

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The court subsequently denied defendant’s motion for

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reconsideration under Federal Rule of Civil Procedure 59(e).

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(Docket No. 97.)

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clear error in its order granting a preliminary injunction.

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Second, the court found that the much of the “new evidence”

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introduced by defendant could have been presented in opposition

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to the motion for a preliminary injunction, and the evidence

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defendant relied on did not change the court’s conclusion that

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the Proposition 65 warning as to glyphosate violated the First

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Amendment.

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warnings proposed by defendant because those warnings still

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conveyed the message that glyphosate was known to cause cancer or

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suggested that there was equal or more weight for the proposition

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that glyphosate caused cancer than for the proposition that it

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did not.

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The court first held that it had not committed

In doing so, the court rejected two alternative

Plaintiffs now seek a permanent injunction barring

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enforcement of the Proposition 65 warning as to glyphosate.

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Defendant in response seeks a determination that plaintiffs’
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First Amendment claim fails as a matter of law.8

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III. Ripeness

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Defendant continues to argue that plaintiffs’ First

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Amendment challenge is not ripe, despite the court’s prior

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determination of ripeness in granting the preliminary injunction.

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Courts must examine whether a case is ripe because their role “is

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neither to issue advisory opinions nor to declare rights in

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hypothetical cases, but to adjudicate live cases or controversies

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consistent with the powers granted the judiciary in Article III

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of the Constitution.”

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220 F.3d 1134, 1138 (9th Cir. 2000).

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Thomas v. Anchorage Equal Rights Comm’n,

The ripeness inquiry includes both “constitutional” and

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“prudential” components.

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of standing, courts consider “whether the plaintiffs face a

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realistic danger of sustaining direct injury as a result of the

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statute’s operation or enforcement, or whether the alleged injury

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is too imaginary or speculative to support jurisdiction.”

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(citations and internal quotations omitted).

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prudential component, courts consider (1) the fitness of the

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issues for judicial decision and (2) the hardship to the parties

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of withholding court consideration.

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court once again finds that plaintiffs’ First Amendment challenge

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is ripe under both the constitutional and prudential inquiries.

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Id.

Under the constitutional component

Id.

Under the

Id. at 1142.

Here, the

First, plaintiffs still face a significant risk of

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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.
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injury notwithstanding defendant’s claim that no warnings are

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required for plaintiffs’ products because they likely contain

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glyphosate levels below the “no significant risk level” (“NSRL”

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or “safe harbor” level) that was adopted after the filing of this

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case.

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no warning is required for a product where an exposure poses no

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significant risk assuming lifetime exposure at the level in

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question, Cal. Health & Safety Code § 25249.10; (2) no warnings

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are required if the daily exposure caused by a product is below

The court recognizes that (1) Proposition 65 provides that

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the OEHHA’s safe harbor level under Cal. Code Regs. tit. 27 §

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25705; (3) the OEHHA adopted a safe harbor level of 1,100

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micrograms per day for glyphosate on July 1, 2018, Cal. Code

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Regs. tit. 27, § 25705; (4) some testing of certain foods has

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found glyphosate levels that would lead to expected daily

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exposure levels well below that threshold (Lee Decl. ¶¶ 13-21

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(Docket No. 129)); and (5) some evidence indicates that consumer

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use of glyphosate from home and garden use of glyphosate would

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lead to daily exposure levels well below that threshold (Sandy

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Decl. ¶ 5 (Docket No. 127)).9

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Nevertheless, assuming plaintiffs’ products were tested

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and found to contain concentrations of glyphosate below the safe

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harbor level as set by Cal. Code. Regs. tit. 27 § 25705,

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plaintiffs would still have no reasonable assurance that they

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would not be subject to enforcement actions.

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provided evidence that private plaintiffs have brought

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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.
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enforcement actions for various chemicals notwithstanding a

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defense of compliance with the safe harbor level for those

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chemicals, including where the California Attorney General said a

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proposed enforcement suit had no merit.10

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statute allows any person to file an enforcement suit makes the

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threat of such suits more credible.

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List v. Driehaus, 134 S. Ct. 2334, 2345 (2014) (plaintiffs showed

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credible risk of enforcement because, inter alia, the law at

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issue allowed complaints from private parties who were not

The fact that the

See, e.g., Susan B. Anthony

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“constrained by explicit guidelines or ethical obligations”);

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Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1173 (9th Cir.

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2018) (party had standing because “even if the Attorney General

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would not enforce the law” at issue, private citizens had a right

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(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).
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of action to sue for damages).

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Such suits, which can be brought notwithstanding the

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Attorney General’s finding of no merit, are enabled by the

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statute itself, as defendants in Proposition 65 enforcement

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actions have the burden of showing that their product’s

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glyphosate exposure falls below the no significant risk level in

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a Proposition 65 enforcement action.

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25249.10(c).

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give no warning based on their constitutional right against

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compelled speech, face a credible threat of enforcement as a

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result of exercising such right, regardless of the enactment of

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the safe harbor level for glyphosate.11

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List, 134 S. Ct. at 2342-46 (plaintiff may bring pre-enforcement

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suit where he has an intention to engage in a course of conduct

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with an arguable constitutional interest but proscribed by law,

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“and there exists a credible threat of prosecution”).

Cal. Health & Safety Code §

Thus, plaintiffs, who have stated they intend to

See Susan B. Anthony

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Defendant claims that enforcement actions would be

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unlikely in the event that a product did not exceed the safe

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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.
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harbor level for glyphosate, citing both the steps required to

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file suit (which require 60 days’ notice and the filing of a

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certificate of merit) and the fact that the Attorney General will

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likely inform the private enforcer that (1) there was no

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violation, (2) an action was not in the public interest, and (3)

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the action would not warrant civil penalties and fees.

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also notes that if the private enforcer refused to withdraw its

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notice of violation, the Attorney General would then post a

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letter on the Attorney General website stating that there was no

Defendant

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merit to the proposed enforcement action, and that plaintiffs may

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be ordered to pay attorney’s fees and costs for frivolous

12

enforcement actions under Cal. Health & Safety Code §

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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).

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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

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court “determines that there was no actual or threatened exposure

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to a listed chemical” at any level and also finds that “there was

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no credible factual basis for the certifier’s belief that an

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exposure to a listed chemical had occurred or was threated.”

26

Cal. Health & Safety Code § 25249.7(h)(2).

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bring suit and avoid sanctions, a private plaintiff need only

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credibly allege that that a product has some amount of the
12

See

At best, the possible sanction

In other words, to

See

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chemical at issue, not that the amount of the chemical is harmful

2

or that it exceeds the safe harbor level.

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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.

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risk of enforcement actions, are cognizable injuries, even if a

17

business can ultimately prove that its product is not a cancer

18

risk.

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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

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defendant’s motion for summary judgment to the extent it seeks

22

dismissal based on ripeness.

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IV.

Merits

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To determine whether the Proposition 65 requirement for

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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.
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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.
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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.
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Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 31 of 34
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“[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.
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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
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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

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