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 #75 Order Granting 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
TO ALTER OR AMEND PRELIMINARY
INJUNCTION ORDER

Plaintiffs,

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CIV. NO.

Defendants.
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----oo0oo----

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Before the court is defendant Xavier Becerra’s Motion

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to Alter or Amend the Court’s Order Granting Preliminary

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Injunction (Docket No. 81).

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motion on June 11, 2018.

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I.

The court held a hearing on the

Legal Standard

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A motion to reconsider a preliminary injunction is

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governed by Federal Rule of Civil Procedure 59(e).1

See Credit

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Suisse 1st Boston Corp. v. Grunwald, 400 F.3d 1119, 11-2324 (9th

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Cir. 2005).

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“(1) is presented with newly discovered evidence, (2) committed

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clear error or the initial decision was manifestly unjust, or (3)

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if there is an intervening change in controlling law.”

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Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013)

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(citation omitted).

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A district court may reconsider its decision if it

Smith v.

Motions for reconsideration “are directed to the sound

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discretion of the court.”

Riley v. Giguiere, 631 F. Supp. 2d

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1295, 1310 (E.D. Cal. 2009) (Karlton, J.); see also McDowell v.

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Calderon, 197 F.3d 1253, 1256 (9th Cir. 1999).

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reconsideration is an “extraordinary remedy” that should be used

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“sparingly in the interests of finality and [the] conservation of

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judicial resources.”

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877, 890 (9th Cir. 2000).

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reconsider “to raise arguments or present evidence for the first

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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

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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).
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litigation.”

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Co., 571 F.3d 873, 880 (9th Cir. 2009) (citing Kona Enters., 229

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F.3d at 890).

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II. Discussion

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Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH &

As discussed in the court’s February 26, 2018 order,

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this case concerns California’s Proposition 65, which, among

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other things, requires warning labels for products containing

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chemicals known to the state of California to cause cancer, as

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determined by certain outside entities.

The court preliminarily

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enjoined the Attorney General from enforcing as against

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plaintiffs, plaintiffs’ members, and all persons represented by

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plaintiffs California Health & Safety Code § 25249.6’s

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requirement that any person in the course of doing business

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provide a clear and reasonable warning before exposing any

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individual to glyphosate.2

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court found that such a warning for glyphosate, as prescribed by

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§ 25249.6 and the implementing regulations, was not purely

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factual and uncontroversial under the First Amendment, as

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required by Zauderer v. Office of Disciplinary Counsel of Supreme

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

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Association v. City of Berkeley, 854 F.3d 1105, 1117-18 (9th Cir.

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2017).

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(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

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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.)
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purportedly committed clear error by determining there is no

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possible warning that can comply with Proposition 65 and not

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violate plaintiffs’ First Amendment rights.

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following reasons, the court finds that neither ground warrants

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the extraordinary remedy of reconsideration.

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However, for the

First, the court’s order granting the preliminary

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injunction speaks for itself.

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that the court clearly erred in reaching its conclusions or that

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the injunction is manifestly unjust.

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The Attorney General has not shown

See Smith, 727 F.3d at 955.

Second, the Attorney General’s “new evidence” does not

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warrant reconsideration.

Only some of the evidence could not

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have been presented to the court previously -- the newly-adopted

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no significant risk level (or “safe harbor level”) for glyphosate

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and corresponding Statement of Reasons, the decision in Monsanto

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Co. v. Office of Environmental Health Hazard Assessment, 22 Cal.

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App. 5th 534 (5th Dist. 2018), and the additional information

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posted on the Office of Environmental Health Hazard Assessment

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(“OEHHA”) website.3

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the court’s conclusion that the required Proposition 65 warning

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for glyphosate is not purely factual and uncontroversial.

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safe harbor level for glyphosate, information on the OEHHA

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website regarding the debate as to glyphosate’s carcinogenicity,

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and a decision by the California Court of Appeal regarding the

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listing of glyphosate as a carcinogen -- but which did not

However, this new evidence does not change

The

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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.
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address the First Amendment -- have no relevance to the question

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of whether the warnings required by Proposition 65 and the

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corresponding regulations comply with Zauderer and CTIA.

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The Attorney General also includes new citations to

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sources either supporting the IARC’s determination that

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glyphosate is a probable carcinogen or criticizing agencies that

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found it was not.

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evidence under Rule 59,4 additional support for the IARC

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determination does not change the fact that the overwhelming

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majority of agencies that that have examined glyphosate have

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determined it is not a cancer risk.

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analysis here is not whether the IARC’s determination is

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persuasive or supported by competent evidence, but rather whether

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a warning conveying the message that glyphosate causes cancer is

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factual and uncontroversial.

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Even assuming these citations constituted new

Once again, the court’s

The court next turns to the Attorney General’s newly

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proposed alternative warnings.

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constitute new evidence warranting reconsideration under Rule 59.

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The Attorney General’s first proposed warning states: “WARNING:

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This product can expose you to glyphosate, a chemical listed as

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causing cancer pursuant to the requirements of California law.

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

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(Docket No. 81-1)).

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from the existing safe harbor warning already rejected by this

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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).
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Neither of these warnings

(Mot. 10

This warning is not significantly different

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court, which states that glyphosate is a chemical known to the

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state of California to cause cancer.

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listed as causing cancer “pursuant the requirements of California

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law” conveys essentially the same message to consumers as stating

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that a chemical is known to the state of California to cause

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cancer.

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not interpret warnings in accordance with a complex web of

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statutes, regulations, and court decisions, and the most obvious

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reading” of this alternate warning is that exposure to glyphosate

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As the court previously stated, “[o]rdinary consumers do

in fact causes cancer in humans.

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Stating that a chemical is

(See Prelim. Inj. Order 14.)

Further, California cannot remedy this warning by

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simply pointing consumers to a website discussing the debate.

It

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would seem likely that few, if any, consumers will actually visit

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the www.P65warnings.ca.gov website, meaning that as a practical

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matter this website will not provide the necessary context that

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might render this warning factual and uncontroversial.

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consumers were likely to visit this website, the Attorney General

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conceded at oral argument that whether a warning is factual and

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uncontroversial is determined by looking at the warning standing

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alone.

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not be cured by reference to an outside source.5

Even if

A warning that is deficient under the First Amendment may

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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)).
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The Attorney General’s second proposed warning does

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provide additional context regarding the debate as to

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glyphosate’s carcinogenicity, stating:

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WARNING: This product can expose you to
glyphosate, a chemical listed as causing cancer
pursuant to the requirements of California law.
The listing is based on a determination by the
United Nations International Agency for Research
on Cancer that glyphosate presents a cancer
hazard. The U.S. Environmental Protection Agency
has tentatively concluded in a draft document
that glyphosate does not present a cancer hazard.
For more information go to
www.P65warnings.ca.gov.
(Mot. 12.)

However, this warning is not new evidence

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under Rule 59(e) because there is no reason the Attorney General

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could not have proposed such a warning in response to plaintiffs’

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request for a preliminary injunction.

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880 (on motion to reconsider, party may not raise arguments or

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present evidence that could have been raised earlier in the

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litigation).

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offered such a proposed warning until he knew how the court would

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rule on the preliminary injunction, but such contention is not

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plausible.

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Preliminary Injunction, the court proposed multiple iterations of

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warnings providing more context regarding the debate on

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glyphosate’s carcinogenicity, none of which were acceptable to

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the Attorney General.

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rejected the court’s proposal of a warning that would state that

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glyphosate was a carcinogen as “determined by one of the agencies

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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

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warning.6

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Attorney General could have proposed his second alternative

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warning, or agreed to a similar warning, before the court granted

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a preliminary injunction, but he chose not to.

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the Attorney General essentially took the position that the

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warning he now advocates was insufficient.

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(Hr’g Tr. at 51 (Docket No. 72).)

In other words, the

To the contrary,

Even assuming the second alternative warning could not

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have been presented before and was binding on private enforcers

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of Proposition 65, this warning does not warrant reconsideration

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of the court’s injunction.

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impossible task” to disclose “everything on each side on the

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scientific debate,” see CTIA-The Wireless Association v. City of

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Berkeley, 139 F. Supp. 3d 1048, 1071-72 (N.D. Cal. 2015), aff’d,

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854 F.3d 1105 (9th Cir. 2017), and the law does not require a

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warning label to disclose the details of the debate in the

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scientific community regarding glyphosate’s carcinogenicity –- to

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do so would turn a warning label into an essay.

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not clear that even a lengthy discussion regarding the

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conflicting agency findings as to glyphosate’s cancer risk would

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comply with the First Amendment.

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record, the court questions whether California has shown that

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requiring a Proposition 65 warning for glyphosate directly

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advances the law’s stated interest in informing Californians

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about exposures to chemicals that cause cancer.

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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.
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The court agrees that it is “an

However, it is

Given the evidence in the

See Central

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Hudson Gas & Elec. Co. v. Pub. Serv. Comm’n of N.Y., 447 U.S.

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557, 566 (1980); Cal. Chamber of Commerce v. Brown, 196 Cal. App.

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4th 233, 258 (1st Dist. 2011).7

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The Attorney General’s second alternative warning is

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also deficient because it conveys the message that there is equal

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weight of authority for and against the proposition that

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glyphosate causes cancer, or that there is more evidence that it

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does, given the language stating that the EPA’s findings were

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only tentative, when the heavy weight of evidence in the record

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is that glyphosate is not known to cause cancer.8

Accordingly,

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neither of the Attorney General’s alternative warnings, nor any

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purported clear error by the court, weigh in favor of

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reconsideration.

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IT IS THEREFORE ORDERED that defendant’s Motion to

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Alter or Amend Court’s Order Granting Preliminary Injunction

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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.
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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.
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(Docket No. 81) be, and the same hereby is, DENIED.

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Dated:

June 12, 2018

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