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

Filing 97

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 6/12/2018 DENYING 81 Defendant's Motion to Alter or Amend Court's Order Granting Preliminary Injunction 75 . (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 TO ALTER OR AMEND PRELIMINARY INJUNCTION ORDER Plaintiffs, 21 22 CIV. NO. Defendants. 1 1 ----oo0oo---- 2 Before the court is defendant Xavier Becerra’s Motion 3 to Alter or Amend the Court’s Order Granting Preliminary 4 Injunction (Docket No. 81). 5 motion on June 11, 2018. 6 I. The court held a hearing on the Legal Standard 7 A motion to reconsider a preliminary injunction is 8 governed by Federal Rule of Civil Procedure 59(e).1 See Credit 9 Suisse 1st Boston Corp. v. Grunwald, 400 F.3d 1119, 11-2324 (9th 10 Cir. 2005). 11 “(1) is presented with newly discovered evidence, (2) committed 12 clear error or the initial decision was manifestly unjust, or (3) 13 if there is an intervening change in controlling law.” 14 Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) 15 (citation omitted). 16 A district court may reconsider its decision if it Smith v. Motions for reconsideration “are directed to the sound 17 discretion of the court.” Riley v. Giguiere, 631 F. Supp. 2d 18 1295, 1310 (E.D. Cal. 2009) (Karlton, J.); see also McDowell v. 19 Calderon, 197 F.3d 1253, 1256 (9th Cir. 1999). 20 reconsideration is an “extraordinary remedy” that should be used 21 “sparingly in the interests of finality and [the] conservation of 22 judicial resources.” 23 877, 890 (9th Cir. 2000). 24 reconsider “to raise arguments or present evidence for the first 25 time when they could reasonably have been raised earlier in the However, Kona Enters. v. Estate of Bishop, 229 F.3d A party may not use a motion to 26 27 28 Although defendant’s motion is styled as a “motion to alter or amend” the court’s prior order, the parties agree that this motion is governed by Rule 59(e). 2 1 1 litigation.” 2 Co., 571 F.3d 873, 880 (9th Cir. 2009) (citing Kona Enters., 229 3 F.3d at 890). 4 II. Discussion 5 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & As discussed in the court’s February 26, 2018 order, 6 this case concerns California’s Proposition 65, which, among 7 other things, requires warning labels for products containing 8 chemicals known to the state of California to cause cancer, as 9 determined by certain outside entities. The court preliminarily 10 enjoined the Attorney General from enforcing as against 11 plaintiffs, plaintiffs’ members, and all persons represented by 12 plaintiffs California Health & Safety Code § 25249.6’s 13 requirement that any person in the course of doing business 14 provide a clear and reasonable warning before exposing any 15 individual to glyphosate.2 16 court found that such a warning for glyphosate, as prescribed by 17 § 25249.6 and the implementing regulations, was not purely 18 factual and uncontroversial under the First Amendment, as 19 required by Zauderer v. Office of Disciplinary Counsel of Supreme 20 Court of Ohio, 471 U.S. 626, 651 (1985), and CTIA-The Wireless 21 Association v. City of Berkeley, 854 F.3d 1105, 1117-18 (9th Cir. 22 2017). 23 24 (Docket No. 75.) In doing so, the The Attorney General now claims that reconsideration is warranted in light of new evidence and because the court 25 26 27 28 Lauren Zeise, director of the Office of Environmental Health Hazard Assessment, was initially included in the court’s 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.) 3 2 1 purportedly committed clear error by determining there is no 2 possible warning that can comply with Proposition 65 and not 3 violate plaintiffs’ First Amendment rights. 4 following reasons, the court finds that neither ground warrants 5 the extraordinary remedy of reconsideration. 6 However, for the First, the court’s order granting the preliminary 7 injunction speaks for itself. 8 that the court clearly erred in reaching its conclusions or that 9 the injunction is manifestly unjust. 10 The Attorney General has not shown See Smith, 727 F.3d at 955. Second, the Attorney General’s “new evidence” does not 11 warrant reconsideration. Only some of the evidence could not 12 have been presented to the court previously -- the newly-adopted 13 no significant risk level (or “safe harbor level”) for glyphosate 14 and corresponding Statement of Reasons, the decision in Monsanto 15 Co. v. Office of Environmental Health Hazard Assessment, 22 Cal. 16 App. 5th 534 (5th Dist. 2018), and the additional information 17 posted on the Office of Environmental Health Hazard Assessment 18 (“OEHHA”) website.3 19 the court’s conclusion that the required Proposition 65 warning 20 for glyphosate is not purely factual and uncontroversial. 21 safe harbor level for glyphosate, information on the OEHHA 22 website regarding the debate as to glyphosate’s carcinogenicity, 23 and a decision by the California Court of Appeal regarding the 24 listing of glyphosate as a carcinogen -- but which did not However, this new evidence does not change The 25 26 27 Because plaintiffs do not oppose the Attorney General’s Request for Judicial Notice (Docket No. 88) and the court finds the materials in the Request are properly subject to judicial notice, the court hereby GRANTS the Request. 3 28 4 1 address the First Amendment -- have no relevance to the question 2 of whether the warnings required by Proposition 65 and the 3 corresponding regulations comply with Zauderer and CTIA. 4 The Attorney General also includes new citations to 5 sources either supporting the IARC’s determination that 6 glyphosate is a probable carcinogen or criticizing agencies that 7 found it was not. 8 evidence under Rule 59,4 additional support for the IARC 9 determination does not change the fact that the overwhelming 10 majority of agencies that that have examined glyphosate have 11 determined it is not a cancer risk. 12 analysis here is not whether the IARC’s determination is 13 persuasive or supported by competent evidence, but rather whether 14 a warning conveying the message that glyphosate causes cancer is 15 factual and uncontroversial. 16 Even assuming these citations constituted new Once again, the court’s The court next turns to the Attorney General’s newly 17 proposed alternative warnings. 18 constitute new evidence warranting reconsideration under Rule 59. 19 The Attorney General’s first proposed warning states: “WARNING: 20 This product can expose you to glyphosate, a chemical listed as 21 causing cancer pursuant to the requirements of California law. 22 For more information go to” 23 (Docket No. 81-1)). 24 from the existing safe harbor warning already rejected by this 25 It appears that these sources could have been provided in the Attorney General’s opposition to the Motion for Preliminary Injunction. See Marlyn, 571 F.3d at 880 (party may not use a motion to reconsider to raise arguments or present evidence that could reasonably have been raised earlier in the litigation). 5 26 27 28 4 Neither of these warnings (Mot. 10 This warning is not significantly different 1 court, which states that glyphosate is a chemical known to the 2 state of California to cause cancer. 3 listed as causing cancer “pursuant the requirements of California 4 law” conveys essentially the same message to consumers as stating 5 that a chemical is known to the state of California to cause 6 cancer. 7 not interpret warnings in accordance with a complex web of 8 statutes, regulations, and court decisions, and the most obvious 9 reading” of this alternate warning is that exposure to glyphosate 10 As the court previously stated, “[o]rdinary consumers do in fact causes cancer in humans. 11 Stating that a chemical is (See Prelim. Inj. Order 14.) Further, California cannot remedy this warning by 12 simply pointing consumers to a website discussing the debate. It 13 would seem likely that few, if any, consumers will actually visit 14 the website, meaning that as a practical 15 matter this website will not provide the necessary context that 16 might render this warning factual and uncontroversial. 17 consumers were likely to visit this website, the Attorney General 18 conceded at oral argument that whether a warning is factual and 19 uncontroversial is determined by looking at the warning standing 20 alone. 21 not be cured by reference to an outside source.5 Even if A warning that is deficient under the First Amendment may 22 23 24 25 26 27 28 Similarly, the court rejects the Attorney General’s suggestion that the warning does not violate the First Amendment because plaintiffs may provide their own additional information regarding glyphosate’s carcinogenicity separate from the warning. Accord Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights Comm’n, No. 16-111, 2018 WL 2465172, at *27 (June 4, 2018) (Thomas, J. concurring) (“Because the government cannot compel speech, it also cannot ‘require speakers to affirm in one breath that which they deny in the next.’”) (quoting Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 16 (1986)). 6 5 1 The Attorney General’s second proposed warning does 2 provide additional context regarding the debate as to 3 glyphosate’s carcinogenicity, stating: 4 5 6 7 8 9 10 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 (Mot. 12.) However, this warning is not new evidence 11 under Rule 59(e) because there is no reason the Attorney General 12 could not have proposed such a warning in response to plaintiffs’ 13 request for a preliminary injunction. 14 880 (on motion to reconsider, party may not raise arguments or 15 present evidence that could have been raised earlier in the 16 litigation). 17 offered such a proposed warning until he knew how the court would 18 rule on the preliminary injunction, but such contention is not 19 plausible. 20 Preliminary Injunction, the court proposed multiple iterations of 21 warnings providing more context regarding the debate on 22 glyphosate’s carcinogenicity, none of which were acceptable to 23 the Attorney General. 24 rejected the court’s proposal of a warning that would state that 25 glyphosate was a carcinogen as “determined by one of the agencies 26 but not by the others” because such language would “dilute” the See Marlyn, 571 F.3d at The Attorney General argues that he could not have During oral argument on plaintiffs’ Motion for a Indeed, the Attorney General specifically 27 28 7 1 warning.6 2 Attorney General could have proposed his second alternative 3 warning, or agreed to a similar warning, before the court granted 4 a preliminary injunction, but he chose not to. 5 the Attorney General essentially took the position that the 6 warning he now advocates was insufficient. 7 (Hr’g Tr. at 51 (Docket No. 72).) In other words, the To the contrary, Even assuming the second alternative warning could not 8 have been presented before and was binding on private enforcers 9 of Proposition 65, this warning does not warrant reconsideration 10 of the court’s injunction. 11 impossible task” to disclose “everything on each side on the 12 scientific debate,” see CTIA-The Wireless Association v. City of 13 Berkeley, 139 F. Supp. 3d 1048, 1071-72 (N.D. Cal. 2015), aff’d, 14 854 F.3d 1105 (9th Cir. 2017), and the law does not require a 15 warning label to disclose the details of the debate in the 16 scientific community regarding glyphosate’s carcinogenicity –- to 17 do so would turn a warning label into an essay. 18 not clear that even a lengthy discussion regarding the 19 conflicting agency findings as to glyphosate’s cancer risk would 20 comply with the First Amendment. 21 record, the court questions whether California has shown that 22 requiring a Proposition 65 warning for glyphosate directly 23 advances the law’s stated interest in informing Californians 24 about exposures to chemicals that cause cancer. 25 Notably, the Attorney General continues to argue that language providing more context is unnecessary and reserves the right to raise this argument on appeal. (See Mot. 3 n.3.) This reservation of a right to appeal even if the court grants reconsideration tends to weigh against granting the Attorney General’s motion. 8 26 27 28 6 The court agrees that it is “an However, it is Given the evidence in the See Central 1 Hudson Gas & Elec. Co. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 2 557, 566 (1980); Cal. Chamber of Commerce v. Brown, 196 Cal. App. 3 4th 233, 258 (1st Dist. 2011).7 4 The Attorney General’s second alternative warning is 5 also deficient because it conveys the message that there is equal 6 weight of authority for and against the proposition that 7 glyphosate causes cancer, or that there is more evidence that it 8 does, given the language stating that the EPA’s findings were 9 only tentative, when the heavy weight of evidence in the record 10 is that glyphosate is not known to cause cancer.8 Accordingly, 11 neither of the Attorney General’s alternative warnings, nor any 12 purported clear error by the court, weigh in favor of 13 reconsideration. 14 IT IS THEREFORE ORDERED that defendant’s Motion to 15 Alter or Amend Court’s Order Granting Preliminary Injunction 16 17 18 19 20 21 22 23 24 25 26 27 28 It also appears that a warning properly characterizing the debate as to glyphosate’s carcinogenicity would not comply with Proposition 65 and the applicable regulations and thus would not advance a substantial state interest. See Central Hudson, 447 U.S. at 566. The Attorney General’s own Settlement Guidelines state that certain words or phrases are per se not clear and reasonable, “such as (1) use of the adverb ‘may’ to modify whether the chemical causes cancer . . . (as distinguished from use of “may” to modify whether the product itself causes cancer . . .); [and] (2) additional words or phrases that contradict or obfuscate otherwise acceptable warning language.” Cal. Code Regs. tit. 11 § 3202(b). The Attorney General’s second alternate warning, by discussing the EPA’s contrary finding that glyphosate does not cause cancer, appears to “contradict or obfuscate otherwise acceptable warning language” in violation of this regulation. 7 Once again, the court expresses no opinion as to whether a statement that a chemical causes cancer is factual and uncontroversial where there is stronger evidence in support of the chemical’s carcinogenicity. 9 8 1 (Docket No. 81) be, and the same hereby is, DENIED. 2 Dated: June 12, 2018 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 10

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