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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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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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,

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2:17-2401 WBS EFB

MEMORANDUM AND ORDER RE: MOTION
FOR PRELIMINARY INJUNCTION

Plaintiffs,

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CIV. NO.

Defendants.
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Before the court is plaintiffs’ Motion for Preliminary

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Injunction.

(Docket No. 29.)

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motion on February 20, 2018.

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I.

The court held a hearing on the

Factual and Procedural History

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This case concerns a challenge to California’s listing

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of glyphosate1 as a chemical known to the State of California to

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cause cancer, as well as a challenge to California’s warning

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requirements that accompany that listing.

Plaintiffs claim,

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among other things, that the listing and warning requirements

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violate the First Amendment by compelling them to make false,

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misleading, and highly controversial statements about their

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products, and they seek a preliminary injunction on this basis.2

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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 known to the State to

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cause cancer, as determined by, inter alia, certain outside

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entities, including the United States Environmental Protection

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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.)
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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.
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Agency (“EPA”), the United States Food and Drug Administration

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(“FDA”), and the International Agency for Research on Cancer

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(“IARC”).3

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(3d Dist. 1989) (citing, inter alia, Cal. Labor Code 6382(b)(1));

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see also Cal. Code Regs. tit. 27 §§ 25306(m), 25904(b)4 (“A

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chemical or substance shall be included on the list [of chemicals

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known to the state to cause cancer] if it is classified by the

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International Agency for Research on Cancer” as “carcinogenic to

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humans” or “[p]robably carcinogenic to humans” and there is

AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 431-34

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“sufficient evidence of carcinogenicity in experimental

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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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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).
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Several new regulations implementing Proposition 65
take effect August 30, 2018. This opinion refers to the current
versions of the regulations unless otherwise noted.
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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.
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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; Deukmejian, 212 Cal. App. 3d at 431-34.

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to comply may result in penalties up to $2,500 per day for each

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failure to provide an adequate warning, and enforcement actions

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may be brought by the California Attorney General, district

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attorneys, certain city attorneys and city prosecutors, and

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private citizens who may recover attorney’s fees.

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Safety Code § 25249.7(b), Cal. Code Regs. tit. 11 § 3201.

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Cal. Health & Safety
Failure

Cal. Health &

In 2015, the IARC classified glyphosate as “probably

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carcinogenic” to humans based on evidence that it caused cancer

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in experimental animals and limited evidence that it could cause

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cancer in humans.

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Preamble (Docket No. 49-8), and Ex. O, IARC Glyphosate, from

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Monograph 112 (Docket No. 49-15).)

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organizations, including the EPA and other agencies within the

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World Health Organization, have concluded that there is no

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evidence that glyphosate causes cancer.

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(Docket Nos. 29-8 through 29-15).)6

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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

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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.
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issued a Notice of Intent to List Glyphosate in November 2015.

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(Zuckerman Decl., Ex. Q (Docket No. 49-17).)

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The OEHHA listed glyphosate as a chemical known to the

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state of California to cause cancer on July 7, 2017, and thus the

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attendant warning requirement takes effect on July 7, 2018.

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(Zuckerman Decl., Ex. T, OEHHA Chemicals Known to the State to

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Cause Cancer or Reproductive Toxicity List (December 28, 2017)

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(Docket No. 49-20).)

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II. Discussion

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Injunctive relief is “an extraordinary and drastic

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remedy, one that should not be granted unless the movant, by a

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clear showing, carries the burden of persuasion.”

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Armstrong, 520 U.S. 968, 972 (1997) (citation omitted).

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to obtain a preliminary injunction, the moving party must

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establish (1) it is likely to succeed on the merits, (2) it is

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likely to suffer irreparable harm in the absence of preliminary

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relief, (3) the balance of equities tips in its favor, and (4) an

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injunction is in the public interest.

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Council, Inc., 555 U.S. 7, 20 (2008).

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A.

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Mazurek v.
In order

Winter v. Nat. Res. Def.

Ripeness
Before the court examines the merits of plaintiffs’

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First Amendment claim, the court will consider whether this claim

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is ripe.

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to prevent the courts, through avoidance of premature

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adjudication, from entangling themselves in abstract

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disagreements.”

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F.3d 1134, 1138 (9th Cir. 2000) (citations and internal

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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
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because their role “is neither to issue advisory opinions nor to

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declare rights in hypothetical cases, but to adjudicate live

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cases or controversies consistent with the powers granted the

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judiciary in Article III of the Constitution.”

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Id.

The ripeness inquiry includes both “constitutional” and

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“prudential” components.

Id.

Under the constitutional component

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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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reasons discussed below, the court finds that plaintiffs’ First

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Amendment challenge is ripe under both the constitutional and

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prudential inquiries.

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Id.

Under the

Id. at 1142.

For the

First, defendants argue that plaintiffs’ First

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Amendment challenge is unripe because plaintiffs may not have to

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provide any warning if their products’ glyphosate levels are

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below the “safe harbor” level that will likely be adopted by the

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State before the warnings are required.

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the State’s possible enactment of a safe harbor level, plaintiffs

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still face a significant risk of injury.

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that (1) Proposition 65 provides that no warning is required for

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a product where an exposure poses no significant risk assuming

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lifetime exposure at the level in question, Cal. Health & Safety

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Code § 25249.10; (2) the OEHHA has set specific safe harbor
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However, regardless of

The court recognizes

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levels for several chemicals, and no warnings are required if the

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daily exposure caused by a product is below that safe harbor

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level, Cal. Code Regs. tit. 27 § 25705; and (3) the OEHHA has

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proposed a safe harbor level of 1,100 micrograms per day for

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glyphosate, and the corresponding regulation setting that level

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is expected to be completed by July 1, 2018, (Fernandez Decl. ¶ 9

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(Docket No. 48)).

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Nevertheless, assuming plaintiffs’ products were tested
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 action.

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provided evidence that private plaintiffs have brought

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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.7

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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.,
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have stated they intend to give no warning based on their

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constitutional right against compelled speech, face a credible

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threat of enforcement as a result of exercising such right,

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regardless of the possible enactment of a safe harbor level for

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glyphosate.8

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Defendants claim 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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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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Defendants also note that if the private enforcer refused to

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withdraw its notice of violation, the Attorney General would then

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post a letter on the Attorney General website stating that there

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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).
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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).
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was no merit to the proposed enforcement action.

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these purported barriers, one California Court of Appeal has

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explained that the instigation of Proposition 65 enforcement

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actions is “easy – and almost absurdly easy at the pleading stage

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and pretrial stages.”

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Indus. Members, 137 Cal. App. 4th 1185, 1215 (4th Dist. 2006).

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Notwithstanding

See Consumer Def. Grp. v. Rental Hous.

Further, in order to take advantage of the safe harbor,

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plaintiffs would be required to test their products to determine

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whether their products exceeded the safe harbor level, incurring

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the attendant costs, which in itself is a cognizable injury.

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See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,

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154-55 (2010) (farmers seeking injunctive relief had standing

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based on, inter alia, the cost of testing crops that would be

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required if injunction was not granted).9

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Second, defendants argue that plaintiffs’ First
Amendment challenge is unripe because even if their products

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(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).)
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exceed the safe harbor level plaintiffs may defend any

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enforcement action by showing their products do not pose a

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significant cancer risk.

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affirmative defense which plaintiffs would have to assert once

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the enforcement action is brought against them,10 and facing

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enforcement actions, or even the possible risk of enforcement

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actions, are cognizable injuries.

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Rest. v. Becerra, 878 F.3d 1165, 1173 (9th Cir. 2018) (party had

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standing because “even if the Attorney General would not enforce

However, that would merely be an

See, e.g., Italian Colors

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the law, [the statute under review] gives private citizens a

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right of action to sue for damages”).

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Third, defendants argue that plaintiffs’ First

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Amendment challenge is unripe because it has not been determined

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what any required warning would have to say.

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discussed in detail below in the court’s discussion of the

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likelihood of success on the merits, any warning which plaintiffs

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might be able to devise consistent with defendants’ demands under

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the regulations interpreting Proposition 65 would be inconsistent

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with plaintiffs’ First Amendment rights.

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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.”).
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B.

Likelihood of Success on the Merits

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As in initial matter, plaintiffs have not shown a

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likelihood of success on the merits of their claim that the

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listing of glyphosate violates the First Amendment, because the

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listing is government speech, not private speech.

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Speech Clause restricts government regulation of private speech;

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it does not regulate government speech.”

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Summum, 555 U.S. 460, 467 (2009).

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chemicals it purportedly knows to cause cancer is neither a

“The Free

Pleasant Grove City v.

California’s listing of

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restriction of private speech nor government-compelled private

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speech.

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warning requirement does not transform the listing itself into

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government-compelled speech.

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by California since July 2017, and plaintiffs have not been

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required to provide any warnings.

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2018 deadline for providing the Proposition 65 warning that

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compels private speech.

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likelihood of success on the merits of their claim that the

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listing of glyphosate violates the First Amendment.

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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

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irreparable harm should the court fail to enjoin the listing of

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glyphosate, because any harm that plaintiffs might suffer is

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caused by the warning requirements of Proposition 65, rather than

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the listing itself.

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have already suffered any injury as a result of the listing, but

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only allege that they will suffer injury as the warning

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requirement deadline approaches and takes effect.

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words, any alleged irreparable injury could be prevented directly

Notably, plaintiffs do not claim that they

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In other

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by enjoining the warning requirement.

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will deny a preliminary injunction based on plaintiffs’ claim

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that the glyphosate listing violates the First Amendment.

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Accordingly, the court

A different analysis is required for the warning

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requirement, as it compels commercial speech.

In Zauderer v.

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Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S.

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626, 651 (1985), the Supreme Court held that the government may

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require commercial speakers to disclose “purely factual and

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uncontroversial information” about commercial products or

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services, as long as the “disclosure requirements are reasonably

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related” to a substantial government interest and are neither

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“unjustified [n]or unduly burdensome.”

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Wireless Ass’n v. City of Berkeley, 854 F.3d 1105, 1118 (9th Cir.

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2017).

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See also CTIA-The

The State has the burden of demonstrating that a

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disclosure requirement is purely factual and uncontroversial, not

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unduly burdensome, and reasonably related to a substantial

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government interest.

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Fla. Dep’t of Bus. & Prof’l Regulation, Bd. of Accountancy, 512

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U.S. 136, 146 (1994).

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whether the compelled disclosure is of purely factual and

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uncontroversial information.

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“refers to the factual accuracy of the compelled disclosure, not

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to its subjective impact on the audience.”

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1117-18.

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nonetheless misleading and, in that sense, untrue” and therefore

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unconstitutionally compelled private speech under Zauderer.

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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

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Id.

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F.3d 18, 27 (D.C. Cir. 2014) (recognizing possibility that

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required factual disclosures “could be so one-sided or incomplete

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that they would not qualify as ‘factual and uncontroversial’”)

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(citation omitted).

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Defendants argue that any warning for glyphosate that

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incorporates the current safe-harbor warning language “known to

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the state of California to cause cancer” or (“known to cause

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cancer”) will be truthful and not misleading because Proposition

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65 and its implementing regulations state that chemicals are

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“known” to the State to cause cancer when, inter alia, they are

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classified by the IARC as “[p]robably carcinogenic to humans” and

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there is “sufficient evidence of carcinogenicity in experimental

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animals.”

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IARC classified glyphosate as a probable carcinogen and there was

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sufficient evidence of carcinogenicity in animals, defendants

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argue that California does in fact “know” that glyphosate causes

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cancer under the applicable regulations, and its warning is

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factually accurate.

See Cal. Code Regs. tit. 27 § 25904(b).

Because the

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While it may be literally true that California “knows”

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that glyphosate causes cancer as the State has defined that term

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in the statute and regulations, the required warning would

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nonetheless be misleading to the ordinary consumer.

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CTIA-The Wireless Ass’n v. City and County of San Francisco, 827

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F. Supp. 2d 1054, 1062-63 (9th Cir. 2011), aff’d, 494 F. App’x

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752 (9th Cir. 2012) (granting preliminary injunction in part

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because required fact sheet was misleading because it failed “to

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explain the limited significance of the WHO ‘possible carcinogen’

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classification,” which implied that radiofrequency energy from
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See, e.g.,

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cell phones was “more dangerous than it really is,” and

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explaining that the fact sheet should state that “RF Energy has

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been classified by the World Health Organization as a possible

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carcinogen rather than as a known carcinogen or a probable

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carcinogen and studies continue to assess the potential health

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effects of cell phones.”).

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Ordinary consumers do not interpret warnings in

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accordance with a complex web of statutes, regulations, and court

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decisions, and the most obvious reading of the Proposition 65

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cancer warning is that exposure to glyphosate in fact causes

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cancer.

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says “known to cause cancer,” there could be a small minority of

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studies or experts disputing whether the substance in fact causes

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cancer.

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a substance is “known to cause cancer” where only one health

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organization had found that the substance in question causes

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cancer and virtually all other government agencies and health

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organizations that have reviewed studies on the chemical had

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found there was no evidence that it caused cancer.

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facts, the message that glyphosate is known to cause cancer is

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misleading at best.

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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

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warning requirement is permissible under Zauderer because (1)

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Proposition 65 does not require plaintiffs to use the language

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“known to the state of California to cause cancer,” and (2)

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plaintiffs may not have to provide warnings if their products

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fall below the safe harbor level that will likely be adopted.

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Under the applicable regulations, in order for a warning to be
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per se clear and reasonable, the warning must state that the

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chemical is known to cause cancer.

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discourage, if not outright prohibit, language that calls into

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doubt California’s knowledge that a chemical causes cancer.11

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Notably, defendants provide no example of a more detailed warning

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explaining the debate regarding glyphosate’s carcinogenicity that

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would pass muster under Proposition 65 and the applicable

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regulations; and at oral argument, defense counsel repeatedly

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rejected various alternative warnings proposed by the court which

California regulations also

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would provide more context or use more accurate language.

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Defendants have the burden of showing that the speech they wish

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to compel is factually accurate and uncontroversial.

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Zauderer, 471 U.S. at 658-59; Ibanez, 512 U.S. at 146.12

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See

On the evidence before the court, the required warning

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for glyphosate does not appear to be factually accurate and

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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

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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

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based on the finding of one organization (which as noted above,

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only found that substance is probably carcinogenic), when

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apparently all other regulatory and governmental bodies have

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found the opposite, including the EPA, which is one of the bodies

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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

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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.

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glyphosate, the required warnings are false and misleading.

17

Plaintiffs have thus established a likelihood of success on the

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merits of their claim that the warning requirement violates their

19

First Amendment rights.15

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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.

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injunctive relief in a First Amendment context can establish

“[A] party seeking preliminary

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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).

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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

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