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

Filing 75

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 2/26/2018 GRANTING IN PART and DENYING IN PART 29 Plaintiffs' Motion for Preliminary Injunction. (Kirksey Smith, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 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, 23 24 25 26 v. LAUREN ZEISE,IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT; and XAVIER BECERRA, in his official capacity as Attorney General of the State of California, 27 28 2:17-2401 WBS EFB MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY INJUNCTION Plaintiffs, 21 22 CIV. NO. Defendants. 1 1 ----oo0oo---- 2 Before the court is plaintiffs’ Motion for Preliminary 3 Injunction. (Docket No. 29.) 4 motion on February 20, 2018. 5 I. The court held a hearing on the Factual and Procedural History 6 This case concerns a challenge to California’s listing 7 of glyphosate1 as a chemical known to the State of California to 8 cause cancer, as well as a challenge to California’s warning 9 requirements that accompany that listing. Plaintiffs claim, 10 among other things, that the listing and warning requirements 11 violate the First Amendment by compelling them to make false, 12 misleading, and highly controversial statements about their 13 products, and they seek a preliminary injunction on this basis.2 14 Under Proposition 65, the Safe Drinking Water and Toxic 15 Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.5- 16 25249.14 (“Proposition 65”), the Governor of California is 17 required to publish a list of chemicals known to the State to 18 cause cancer, as determined by, inter alia, certain outside 19 entities, including the United States Environmental Protection 20 21 22 23 24 1 Glyphosate is a widely-used herbicide 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.) 2 25 26 27 28 Plaintiffs also claim that (1) the listing and warning requirements conflict with the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 343(a) and 346a(n) (“FDCA”), and are thus preempted by federal law, and (2) these requirements violate the Due Process Clause of the Fourteenth Amendment, though they do not seek a preliminary injunction on these other grounds, and the court expresses no opinion as to those allegations. 2 1 Agency (“EPA”), the United States Food and Drug Administration 2 (“FDA”), and the International Agency for Research on Cancer 3 (“IARC”).3 4 (3d Dist. 1989) (citing, inter alia, Cal. Labor Code 6382(b)(1)); 5 see also Cal. Code Regs. tit. 27 §§ 25306(m), 25904(b)4 (“A 6 chemical or substance shall be included on the list [of chemicals 7 known to the state to cause cancer] if it is classified by the 8 International Agency for Research on Cancer” as “carcinogenic to 9 humans” or “[p]robably carcinogenic to humans” and there is AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 431-34 10 “sufficient evidence of carcinogenicity in experimental 11 animals.”).5 12 Proposition 65 also prohibits any person in the course 13 of doing business from knowingly and intentionally exposing 14 anyone to the listed chemicals without a prior “clear and 15 3 16 17 18 19 20 21 22 23 24 The IARC was founded in 1965 as the cancer research arm of the United Nations’ World Health Organization, and exists to “promote international collaboration in cancer research.” (Zuckerman Decl., Ex. G at 5-6 (Docket No. 49-7).) The United States was a founding member of the IARC and remains a member. (Id. 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. H at 10 (Docket No. 49-8).) 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). 4 25 26 27 28 Several new regulations implementing Proposition 65 take effect August 30, 2018. This opinion refers to the current versions of the regulations unless otherwise noted. 5 The 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 1 reasonable” warning, with this prohibition taking effect 12 2 months after the chemical has been listed. 3 Code § 25249.6; Deukmejian, 212 Cal. App. 3d at 431-34. 4 to comply may result in penalties up to $2,500 per day for each 5 failure to provide an adequate warning, and enforcement actions 6 may be brought by the California Attorney General, district 7 attorneys, certain city attorneys and city prosecutors, and 8 private citizens who may recover attorney’s fees. 9 Safety Code § 25249.7(b), Cal. Code Regs. tit. 11 § 3201. 10 Cal. Health & Safety Failure Cal. Health & In 2015, the IARC classified glyphosate as “probably 11 carcinogenic” to humans based on evidence that it caused cancer 12 in experimental animals and limited evidence that it could cause 13 cancer in humans. 14 Preamble (Docket No. 49-8), and Ex. O, IARC Glyphosate, from 15 Monograph 112 (Docket No. 49-15).) 16 organizations, including the EPA and other agencies within the 17 World Health Organization, have concluded that there is no 18 evidence that glyphosate causes cancer. 19 (Docket Nos. 29-8 through 29-15).)6 20 classification of glyphosate as probably carcinogenic, the OEHHA (Zuckerman Decl. (Docket No. 49), Ex. H, However, several other (Prins Decl., Exs. E-L As a result of the IARC’s 21 22 23 24 25 26 27 28 6 Although defendants do not object to plaintiffs’ attachment of several glyphosate studies, defendants object to several declarations provided by plaintiffs, arguing that they are speculative and/or contain inadmissible hearsay. (Defs.’ Objs. (Docket No. 46).) However, as defendants concede, evidence in support of a preliminary injunction application need not meet normal evidentiary standards, and the court may consider and give weight to inadmissible evidence in considering preliminary relief. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003); Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009). The court therefore OVERRULES defendants’ objections. 4 1 issued a Notice of Intent to List Glyphosate in November 2015. 2 (Zuckerman Decl., Ex. Q (Docket No. 49-17).) 3 The OEHHA listed glyphosate as a chemical known to the 4 state of California to cause cancer on July 7, 2017, and thus the 5 attendant warning requirement takes effect on July 7, 2018. 6 (Zuckerman Decl., Ex. T, OEHHA Chemicals Known to the State to 7 Cause Cancer or Reproductive Toxicity List (December 28, 2017) 8 (Docket No. 49-20).) 9 II. Discussion 10 Injunctive relief is “an extraordinary and drastic 11 remedy, one that should not be granted unless the movant, by a 12 clear showing, carries the burden of persuasion.” 13 Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). 14 to obtain a preliminary injunction, the moving party must 15 establish (1) it is likely to succeed on the merits, (2) it is 16 likely to suffer irreparable harm in the absence of preliminary 17 relief, (3) the balance of equities tips in its favor, and (4) an 18 injunction is in the public interest. 19 Council, Inc., 555 U.S. 7, 20 (2008). 20 A. 21 Mazurek v. In order Winter v. Nat. Res. Def. Ripeness Before the court examines the merits of plaintiffs’ 22 First Amendment claim, the court will consider whether this claim 23 is ripe. 24 to prevent the courts, through avoidance of premature 25 adjudication, from entangling themselves in abstract 26 disagreements.” 27 F.3d 1134, 1138 (9th Cir. 2000) (citations and internal 28 punctuation omitted). “Ripeness is peculiarly a question of timing, designed Thomas v. Anchorage Equal Rights Comm’n, 220 Courts must examine whether a case is ripe 5 1 because their role “is neither to issue advisory opinions nor to 2 declare rights in hypothetical cases, but to adjudicate live 3 cases or controversies consistent with the powers granted the 4 judiciary in Article III of the Constitution.” 5 Id. The ripeness inquiry includes both “constitutional” and 6 “prudential” components. Id. Under the constitutional component 7 of standing, courts consider “whether the plaintiffs face a 8 realistic danger of sustaining direct injury as a result of the 9 statute’s operation or enforcement, or whether the alleged injury 10 is too imaginary or speculative to support jurisdiction.” 11 (citations and internal quotations omitted). 12 prudential component, courts consider (1) the fitness of the 13 issues for judicial decision and (2) the hardship to the parties 14 of withholding court consideration. 15 reasons discussed below, the court finds that plaintiffs’ First 16 Amendment challenge is ripe under both the constitutional and 17 prudential inquiries. 18 Id. Under the Id. at 1142. For the First, defendants argue that plaintiffs’ First 19 Amendment challenge is unripe because plaintiffs may not have to 20 provide any warning if their products’ glyphosate levels are 21 below the “safe harbor” level that will likely be adopted by the 22 State before the warnings are required. 23 the State’s possible enactment of a safe harbor level, plaintiffs 24 still face a significant risk of injury. 25 that (1) Proposition 65 provides that no warning is required for 26 a product where an exposure poses no significant risk assuming 27 lifetime exposure at the level in question, Cal. Health & Safety 28 Code § 25249.10; (2) the OEHHA has set specific safe harbor 6 However, regardless of The court recognizes 1 levels for several chemicals, and no warnings are required if the 2 daily exposure caused by a product is below that safe harbor 3 level, Cal. Code Regs. tit. 27 § 25705; and (3) the OEHHA has 4 proposed a safe harbor level of 1,100 micrograms per day for 5 glyphosate, and the corresponding regulation setting that level 6 is expected to be completed by July 1, 2018, (Fernandez Decl. ¶ 9 7 (Docket No. 48)). 8 9 Nevertheless, assuming plaintiffs’ products were tested and found to contain concentrations of glyphosate below the safe 10 harbor level as set by Cal. Code. Regs. tit. 27 § 25705, 11 plaintiffs would still have no reasonable assurance that they 12 would not be subject to enforcement action. 13 provided evidence that private plaintiffs have brought 14 enforcement actions for various chemicals notwithstanding a 15 defense of compliance with the safe harbor level for those 16 chemicals, including where the California Attorney General said a 17 proposed enforcement suit had no merit.7 18 19 20 21 22 23 24 25 26 27 28 7 Plaintiffs have Thus, plaintiffs, who (See, e.g., Norris Decl. ¶¶ 8-10 (Docket No. 66-7) (discussing lawsuit lasting for 6 years brought against McDonald’s Corporation and other 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. ¶¶ 28-31 (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, 786 (N.D. Cal. 2015) (denying motion to dismiss 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., 7 1 have stated they intend to give no warning based on their 2 constitutional right against compelled speech, face a credible 3 threat of enforcement as a result of exercising such right, 4 regardless of the possible enactment of a safe harbor level for 5 glyphosate.8 6 Defendants claim that enforcement actions would be 7 unlikely in the event that a product did not exceed the safe 8 harbor level for glyphosate, citing both the steps required to 9 file suit (which require 60 days’ notice and the filing of a 10 certificate of merit) and the fact that the Attorney General will 11 likely inform the private enforcer that (1) there was no 12 violation, (2) an action was not in the public interest, and (3) 13 the action would not warrant civil penalties and fees. 14 Defendants also note that if the private enforcer refused to 15 withdraw its notice of violation, the Attorney General would then 16 post a letter on the Attorney General website stating that there 17 18 19 20 21 22 23 24 25 26 27 28 Inc. v. Moore, 159 Cal. App. 4th 262, 265 (2d Dist. 2008) (dismissing suit seeking declaration that private party could not initiate Proposition 65 litigation because safe harbor level was not exceeded). 8 Plaintiffs have also provided evidence of likely lost sales if they do not provide Proposition 65 warnings on their products, regardless of whether the state establishes a safe harbor level for glyphosate. At least one major retailer has explained that it will no longer carry glyphosate-based herbicides without any Proposition 65 warning and will remove these herbicides by July 8, 2018, regardless of any safe harbor level that may be set by California. (Martin Decl. ¶ 3 (Docket No. 66-15).) Businesses who wish to comply with Proposition 65’s warning requirement are also faced with the costs of compliance in advance of the July 7, 2018 deadline in the event that a safe harbor level is not established by that deadline. See, e.g., Core-Mark Int’l v. Mont. Bd. of Livestock, 701 F. App’x 568, 571 (9th Cir. 2017) (cost to separately package, label, and inventory milk destined for sale in Montana were concrete injuries). 8 1 was no merit to the proposed enforcement action. 2 these purported barriers, one California Court of Appeal has 3 explained that the instigation of Proposition 65 enforcement 4 actions is “easy – and almost absurdly easy at the pleading stage 5 and pretrial stages.” 6 Indus. Members, 137 Cal. App. 4th 1185, 1215 (4th Dist. 2006). 7 Notwithstanding See Consumer Def. Grp. v. Rental Hous. Further, in order to take advantage of the safe harbor, 8 plaintiffs would be required to test their products to determine 9 whether their products exceeded the safe harbor level, incurring 10 the attendant costs, which in itself is a cognizable injury. 11 See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 12 154-55 (2010) (farmers seeking injunctive relief had standing 13 based on, inter alia, the cost of testing crops that would be 14 required if injunction was not granted).9 15 16 Second, defendants argue that plaintiffs’ First Amendment challenge is unripe because even if their products 17 18 19 20 21 22 23 24 25 26 27 28 9 (See also Inman Decl. ¶¶ 7-9; Novak Decl. ¶¶ 4-6; Hurst Decl. ¶¶ 5-7; Mehan Decl. ¶¶ 4-6; Stoner Decl. ¶¶ 6-9; Kessel Decl. ¶ 4; Jackson Decl. ¶¶ 5-10; McCarty Decl. ¶¶ 11-13; Brinkmeyer Decl. ¶¶ 5-6; Martinson Decl. ¶¶ 5-9; Heering Decl. ¶¶ 37, 39-41; and Wogsland Decl. ¶¶ 5-9 (Docket Nos. 29-52 through 29-59 and 29-61 through 29-63) (explaining that testing requirement or change in production to avoid testing requirements would cause significant changes to farmers’ operations, increase costs, and put them at a competitive disadvantage); Supp. Stoner Decl. ¶¶ 7-8; Supp. Jackson Decl. ¶6; Supp. Hurst Decl. ¶¶ 5-7; and Supp. Inman Decl. ¶¶ 7-9 (Docket No. 66-12 through 66-16) (farmers stating that they do not test their crops for glyphosate and were not required to do so by the EPA); Heering Decl. ¶ 10 (Docket No. 66-6) (explaining that farmers do not have to separately test crops for herbicide residue under federal law because herbicide labeling laws already require that herbicides, if used according to the labeling instructions, will not result in an exposure that exceeds the EPA’s tolerance for a given crop).) 9 1 exceed the safe harbor level plaintiffs may defend any 2 enforcement action by showing their products do not pose a 3 significant cancer risk. 4 affirmative defense which plaintiffs would have to assert once 5 the enforcement action is brought against them,10 and facing 6 enforcement actions, or even the possible risk of enforcement 7 actions, are cognizable injuries. 8 Rest. v. Becerra, 878 F.3d 1165, 1173 (9th Cir. 2018) (party had 9 standing because “even if the Attorney General would not enforce However, that would merely be an See, e.g., Italian Colors 10 the law, [the statute under review] gives private citizens a 11 right of action to sue for damages”). 12 Third, defendants argue that plaintiffs’ First 13 Amendment challenge is unripe because it has not been determined 14 what any required warning would have to say. 15 discussed in detail below in the court’s discussion of the 16 likelihood of success on the merits, any warning which plaintiffs 17 might be able to devise consistent with defendants’ demands under 18 the regulations interpreting Proposition 65 would be inconsistent 19 with plaintiffs’ First Amendment rights. 20 21 22 23 24 25 26 27 28 10 However, as See, e.g., Consumer Def. Grp., 137 Cal. App. 4th at 1214 (explaining that the burden shifting provisions of Proposition 65 “make it virtually impossible for a private defendant to defend a warning action on the theory that the amount of carcinogenic exposure is so low as to pose ‘no significant risk’ short of actual trial”) (citing Cal. Health & Safety Code § 25349.10(c)) (warning requirement shall not apply to “[a]n exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question . . . based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical,” and “[i]n any action brought to enforce [the warning requirement], the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant.”). 10 1 B. Likelihood of Success on the Merits 2 As in initial matter, plaintiffs have not shown a 3 likelihood of success on the merits of their claim that the 4 listing of glyphosate violates the First Amendment, because the 5 listing is government speech, not private speech. 6 Speech Clause restricts government regulation of private speech; 7 it does not regulate government speech.” 8 Summum, 555 U.S. 460, 467 (2009). 9 chemicals it purportedly knows to cause cancer is neither a “The Free Pleasant Grove City v. California’s listing of 10 restriction of private speech nor government-compelled private 11 speech. 12 warning requirement does not transform the listing itself into 13 government-compelled speech. 14 by California since July 2017, and plaintiffs have not been 15 required to provide any warnings. 16 2018 deadline for providing the Proposition 65 warning that 17 compels private speech. 18 likelihood of success on the merits of their claim that the 19 listing of glyphosate violates the First Amendment. 20 The fact that the listing triggers Proposition 65’s Indeed, glyphosate has been listed It is only the upcoming July Thus, plaintiffs have not shown a Similarly, plaintiffs have not shown a likelihood of 21 irreparable harm should the court fail to enjoin the listing of 22 glyphosate, because any harm that plaintiffs might suffer is 23 caused by the warning requirements of Proposition 65, rather than 24 the listing itself. 25 have already suffered any injury as a result of the listing, but 26 only allege that they will suffer injury as the warning 27 requirement deadline approaches and takes effect. 28 words, any alleged irreparable injury could be prevented directly Notably, plaintiffs do not claim that they 11 In other 1 by enjoining the warning requirement. 2 will deny a preliminary injunction based on plaintiffs’ claim 3 that the glyphosate listing violates the First Amendment. 4 Accordingly, the court A different analysis is required for the warning 5 requirement, as it compels commercial speech. In Zauderer v. 6 Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 7 626, 651 (1985), the Supreme Court held that the government may 8 require commercial speakers to disclose “purely factual and 9 uncontroversial information” about commercial products or 10 services, as long as the “disclosure requirements are reasonably 11 related” to a substantial government interest and are neither 12 “unjustified [n]or unduly burdensome.” 13 Wireless Ass’n v. City of Berkeley, 854 F.3d 1105, 1118 (9th Cir. 14 2017). 15 See also CTIA-The The State has the burden of demonstrating that a 16 disclosure requirement is purely factual and uncontroversial, not 17 unduly burdensome, and reasonably related to a substantial 18 government interest. 19 Fla. Dep’t of Bus. & Prof’l Regulation, Bd. of Accountancy, 512 20 U.S. 136, 146 (1994). 21 whether the compelled disclosure is of purely factual and 22 uncontroversial information. 23 “refers to the factual accuracy of the compelled disclosure, not 24 to its subjective impact on the audience.” 25 1117-18. 26 nonetheless misleading and, in that sense, untrue” and therefore 27 unconstitutionally compelled private speech under Zauderer. 28 at 1119; see also Am. Meat Inst. v. U.S. Dep’t of Agric., 760 See Zauderer, 471 U.S. at 658-59; Ibanez v. The dispute in the present case is over In this context, “uncontroversial” CTIA, 854 F.3d at Further, “a statement may be literally true but 12 Id. 1 F.3d 18, 27 (D.C. Cir. 2014) (recognizing possibility that 2 required factual disclosures “could be so one-sided or incomplete 3 that they would not qualify as ‘factual and uncontroversial’”) 4 (citation omitted). 5 Defendants argue that any warning for glyphosate that 6 incorporates the current safe-harbor warning language “known to 7 the state of California to cause cancer” or (“known to cause 8 cancer”) will be truthful and not misleading because Proposition 9 65 and its implementing regulations state that chemicals are 10 “known” to the State to cause cancer when, inter alia, they are 11 classified by the IARC as “[p]robably carcinogenic to humans” and 12 there is “sufficient evidence of carcinogenicity in experimental 13 animals.” 14 IARC classified glyphosate as a probable carcinogen and there was 15 sufficient evidence of carcinogenicity in animals, defendants 16 argue that California does in fact “know” that glyphosate causes 17 cancer under the applicable regulations, and its warning is 18 factually accurate. See Cal. Code Regs. tit. 27 § 25904(b). Because the 19 While it may be literally true that California “knows” 20 that glyphosate causes cancer as the State has defined that term 21 in the statute and regulations, the required warning would 22 nonetheless be misleading to the ordinary consumer. 23 CTIA-The Wireless Ass’n v. City and County of San Francisco, 827 24 F. Supp. 2d 1054, 1062-63 (9th Cir. 2011), aff’d, 494 F. App’x 25 752 (9th Cir. 2012) (granting preliminary injunction in part 26 because required fact sheet was misleading because it failed “to 27 explain the limited significance of the WHO ‘possible carcinogen’ 28 classification,” which implied that radiofrequency energy from 13 See, e.g., 1 cell phones was “more dangerous than it really is,” and 2 explaining that the fact sheet should state that “RF Energy has 3 been classified by the World Health Organization as a possible 4 carcinogen rather than as a known carcinogen or a probable 5 carcinogen and studies continue to assess the potential health 6 effects of cell phones.”). 7 Ordinary consumers do not interpret warnings in 8 accordance with a complex web of statutes, regulations, and court 9 decisions, and the most obvious reading of the Proposition 65 10 cancer warning is that exposure to glyphosate in fact causes 11 cancer. 12 says “known to cause cancer,” there could be a small minority of 13 studies or experts disputing whether the substance in fact causes 14 cancer. 15 a substance is “known to cause cancer” where only one health 16 organization had found that the substance in question causes 17 cancer and virtually all other government agencies and health 18 organizations that have reviewed studies on the chemical had 19 found there was no evidence that it caused cancer. 20 facts, the message that glyphosate is known to cause cancer is 21 misleading at best. 22 A reasonable consumer may understand that if the warning However, a reasonable consumer would not understand that Under these The court also rejects defendants’ arguments that the 23 warning requirement is permissible under Zauderer because (1) 24 Proposition 65 does not require plaintiffs to use the language 25 “known to the state of California to cause cancer,” and (2) 26 plaintiffs may not have to provide warnings if their products 27 fall below the safe harbor level that will likely be adopted. 28 Under the applicable regulations, in order for a warning to be 14 1 per se clear and reasonable, the warning must state that the 2 chemical is known to cause cancer. 3 discourage, if not outright prohibit, language that calls into 4 doubt California’s knowledge that a chemical causes cancer.11 5 Notably, defendants provide no example of a more detailed warning 6 explaining the debate regarding glyphosate’s carcinogenicity that 7 would pass muster under Proposition 65 and the applicable 8 regulations; and at oral argument, defense counsel repeatedly 9 rejected various alternative warnings proposed by the court which California regulations also 10 would provide more context or use more accurate language. 11 Defendants have the burden of showing that the speech they wish 12 to compel is factually accurate and uncontroversial. 13 Zauderer, 471 U.S. at 658-59; Ibanez, 512 U.S. at 146.12 14 See On the evidence before the court, the required warning 15 for glyphosate does not appear to be factually accurate and 16 uncontroversial because it conveys the message that glyphosate’s 17 carcinogenicity is an undisputed fact, when almost all other 18 regulators have concluded that there is insufficient evidence 19 that glyphosate causes cancer. 20 studies regarding the carcinogenicity of glyphosate multiple 21 22 23 24 25 26 27 28 For example, the EPA has reviewed 11 See Cal. Health & Safety Code § 25249.6; Cal. Code Regs. tit. 27 §§ 25601 and 25603.2; Cal. Code Regs. tit. 11 § 3202(b). 12 Indeed, it is not clear that there is any warning which would provide the necessary context regarding glyphosate’s possible cancer risk, given that California’s regulations appear to make it impossible for plaintiffs to explain in the warning that the IARC’s determination is contrary to that reached by other organizations, or that the IARC did not find that glyphosate causes cancer in humans, but that it found that glyphosate was probably carcinogenic based on sufficient evidence in experimental animals and limited evidence in humans. 15 1 times and has determined each time that there was no or 2 insufficient evidence that glyphosate causes cancer, most 3 recently in September 2016.13 4 likewise concluded that there is insufficient evidence that 5 glyphosate causes cancer, including the European Commission’s 6 Health and Consumer Protection Directorate-General, multiple 7 divisions of the World Health Organization besides the IARC, and 8 Germany’s lead consumer health and safety regulator. 9 Decl., Exs. I, J, K, L (Docket Nos. 29-12, 29-13, 29-14, 29- 10 Several international agencies have (Prins 15).)14 11 It is inherently misleading for a warning to state that 12 a chemical is known to the state of California to cause cancer 13 based on the finding of one organization (which as noted above, 14 only found that substance is probably carcinogenic), when 15 apparently all other regulatory and governmental bodies have 16 found the opposite, including the EPA, which is one of the bodies 17 18 19 20 21 22 23 24 25 26 27 28 13 (See Prins Decl., Ex. E (Docket No. 29-8) (EPA renewal of glyphosate registration under the Federal Insecticide, Fungicide, and Rodenticide Act); Prins Decl., Ex. F (Docket No. 29-9) (2014 EPA review of more than 55 epidemiological studies concluding that “that this body of research does not provide evidence to show that glyphosate causes cancer, and it does not warrant any change in EPA’s cancer classification for glyphosate.”); (Prins Decl., Ex. P (Docket No. 29-20) (EPA’s Office of Pesticide Programs 228-page paper considered “23 epidemiological studies, 15 animal carcinogenicity studies, and nearly 90 genotoxicity studies for the active ingredient glyphosate” and concluded that “[t]he available data at this time do no[t] support a carcinogenic process for glyphosate”).) 14 Notably, in 1997 and 2007, California’s own OEHHA examined studies of glyphosate to set public health goals for drinking water, both times determining that glyphosate did not pose a cancer risk. (Prins. Decl., Exs. G, H (Docket Nos. 29-10, 29-11).) 16 1 California law expressly relies on in determining whether a 2 chemical causes cancer. 3 whether a statement that a chemical is known to cause cancer is 4 factually accurate and uncontroversial where there is stronger 5 evidence in support of the chemical’s carcinogenicity. 6 here, given the heavy weight of evidence in the record that 7 glyphosate is not in fact known to cause cancer, the required 8 warning is factually inaccurate and controversial. 9 F.3d at 1119; Am. Meat Inst., 760 F.3d at 27. 10 The court expresses no opinion as to However, See CTIA, 854 The court’s First Amendment inquiry here boils down to 11 what the state of California can compel businesses to say. 12 Whether Proposition 65’s statutory and regulatory scheme is good 13 policy is not at issue. 14 compel businesses to provide cancer warnings, the warnings must 15 be factually accurate and not misleading. 16 glyphosate, the required warnings are false and misleading. 17 Plaintiffs have thus established a likelihood of success on the 18 merits of their claim that the warning requirement violates their 19 First Amendment rights.15 20 C. 21 However, where California seeks to As applied to Irreparable Harm The Ninth Circuit has explained that “[i]rreparable 22 harm is relatively easy to establish in a First Amendment Case.” 23 CTIA, 854 F.3d at 1123. 24 injunctive relief in a First Amendment context can establish “[A] party seeking preliminary 25 26 27 28 15 Because the court finds that warning requirement violates plaintiffs’ First Amendment rights on this ground, the court does not reach the issue of whether the warning is reasonably related to a substantial government interest or imposes an undue burden. 17 1 irreparable injury . . . by demonstrating the existence of a 2 colorable First Amendment claim.” 3 First Judicial Dist. Court, 303 F.3d 959, 973 (9th Cir. 2002)). 4 Moreover, “[t]he loss of First Amendment freedoms, for even 5 minimal periods of time, unquestionably constitutes irreparable 6 injury.” 7 Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). 8 Here, because plaintiffs have established that they are likely to 9 succeed on their First Amendment claim as to Proposition 65’s 10 warning requirement, they have also established that they will 11 likely suffer irreparable harm if the warning requirement is not 12 enjoined as to glyphosate.16 13 D. 14 Id. (quoting Sammartano v. Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 828 (9th Balance of Equities and Public Interest When the government is a party, the balance of equities 15 and public interest factors merge. 16 Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. 17 Holder, 556 U.S. 418, 435 (2009)). 18 equities, the court must “balance the interests of all parties 19 and weigh the damage to each.” 20 F.3d 1109, 1138 (9th Cir. 2009) (citation omitted). 21 22 23 24 25 26 27 28 Drakes Bay Oyster Co. v. To determine the balance of Stormans, Inc. v. Selecky, 586 While the court recognizes that the state has a significant interest in protecting its citizens and informing 16 Plaintiffs also claim that the warning requirement will cause several other harms including damage to the reputation and goodwill of plaintiffs and their products, loss of customers, the cost and burden of testing, and disruption to supply chains and existing business practices. Because the court finds that plaintiffs have shown a likelihood of irreparable harm based on the likely infringement of their First Amendment rights, the court expresses no opinion as to the likelihood of these other injuries or whether any such alleged harms are irreparable. 18 1 them of possible health risks, the Ninth Circuit has consistently 2 “recognized the significant public interest in upholding First 3 Amendment principles.” 4 Cir. 2014) (quoting Sammartano, 303 F.3d at 974). 5 California “has no legitimate interest in enforcing an 6 unconstitutional” law. 7 Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). 8 misleading or false labels to consumers also undermines 9 California’s interest in accurately informing its citizens of Doe v. Harris, 772 F.3d 563, 583 (9th Further, See KH Outdoor, LLC v. City of Providing 10 health risks at the expense of plaintiffs’ First Amendment 11 rights. 12 weigh in favor of enjoining Proposition 65’s warning requirement 13 for glyphosate. 14 Accordingly, the balance of equities and public interest As plaintiffs have shown that they are likely to 15 succeed on the merits of their First Amendment claim, are likely 16 to suffer irreparable harm absent an injunction, and that the 17 balance of equities and public interest favor an injunction, the 18 court will grant plaintiffs’ request to enjoin Proposition 65’s 19 warning requirement for glyphosate. 20 IT IS THEREFORE ORDERED that plaintiffs’ Motion for a 21 Preliminary Injunction (Docket No. 29) be, and the same hereby 22 is, GRANTED IN PART. 23 injunction enjoining defendants from listing glyphosate as a 24 chemical known to the State of California to cause cancer under 25 California Health & Safety Code § 25249.8 is DENIED. 26 request for a preliminary injunction enjoining the warning 27 requirement of California Health & Safety Code § 25249.6 as to 28 glyphosate is GRANTED. Plaintiffs’ request for a preliminary Plaintiffs’ Pending final resolution of this action, 19 1 defendants, their agents and employees, all persons or entities 2 in privity with them, and anyone acting in concert with them are 3 hereby ENJOINED from enforcing as against plaintiffs, plaintiffs’ 4 members, and all persons represented by plaintiffs, California 5 Health & Safety Code § 25249.6’s requirement that any person in 6 the course of doing business provide a clear and reasonable 7 warning before exposing any individual to glyphosate. 8 Dated: February 26, 2018 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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