Prop 65 Glyphosate Warnings Violate First Amendment Proscription Against Government-Compelled Speech

In a momentous decision, a federal court of appeals has held that the First Amendment prohibits California from requiring businesses to provide a warning under Proposition 65 for potential exposure to glyphosate. The ruling presents a daunting challenge to the Prop 65 program in situations where the evidence that a chemical causes cancer or reproductive harm (the two toxic endpoints addressed by Prop 65) is subject to meaningful scientific debate, such as is the case with high profile chemicals such as glyphosate, acrylamide, and titanium dioxide, among others.

Accordingly, in addition to voiding the need for glyphosate-related Prop 65 warnings, the ruling highlights First Amendment free speech” rights as a potential defense for businesses subject to Prop 65. The ruling also should have repercussions for Prop 65 chemical-listing decisions by the Office of Environmental Health Hazard Assessment (“OEHHA”).

For a more legalese” discussion of the case, read on ….

The U.S. Court of Appeals for the Ninth Circuit has held that California cannot enforce a Proposition 65 rule requiring cancer labels on products containing glyphosate, the most commonly used herbicide in the world and best known as the active ingredient in popular weed-killer Roundup. The case was decided on First Amendment grounds, with the Court ruling that the Golden State’s carcinogen warning requirement as applied to glyphosate forces companies using the chemical to convey a controversial, fiercely contested message that they fundamentally disagree with,” and therefore cannot be enforced by state regulators.

The suit was initially brought in the U.S. District Court for the Eastern District of California by a coalition of agricultural producers and business entities that use glyphosate in their herbicide products. They filed the lawsuit in late 2017 in response to the OEHHA decision to list the chemical under Prop 65, which requires businesses to provide a warning to consumers before they sell a product in California that can cause an exposure to a listed chemical. The coalition claimed that mandating glyphosate warnings under Prop 65 violated their First Amendment right to be free from compelled speech because the scientific conclusiveness of glyphosate being a carcinogen remains hotly contested. In listing the chemical in 2015l, California relied on the International Agency for Research on Cancer (“IARC”) classification of glyphosate as probably carcinogenic.” However, that conclusion has not been adopted by any other scientific body, including the U.S. Environmental Protection Agency, which has found that glyphosate is not likely to be carcinogenic in humans.

Consistent with the First Amendment, some commercial speech (i.e., speech that promotes a business or commercial activity, in contrast to private or political speech) may be restricted or compelled via government regulations. The constitutionality of these regulations is assessed based upon differing levels of scrutiny which apply depending on the type of regulation the government seeks to promulgate and enforce. Relevant here, the lowest level of scrutiny was established by the Supreme Court in Zauderer v. Office of Disc. Counsel, where the Court held that states may compel purely factual and uncontroversial” commercial speech as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” 471 U.S. 626, 628 (1985). An intermediate” standard of scrutiny was established by the Supreme Court in Central Hudson v. Public Svn. Comm’n where the Court created a four-part test to determine whether governmental regulation of commercial speech is constitutional:

  1. To be protected, the commercial speech must concern lawful activity and may not be misleading. If this step is satisfied, courts will use the following steps to determine whether the governmental regulation is constitutional:
  2. The governmental interest in regulating speech must be substantial;”
  3. The regulation must advance the interest asserted; and
  4. The regulation may not be any more extensive than necessary to serve the interest asserted in Step 3.

447 U.S. 557 (1980).

Shortly after the lawsuit was initiated in the Eastern District of California, OEHHA spun their wheels and generated several glyphosate-specific safe harbor” warnings, two of which it presented to the Eastern District for review under Zauderer. Both of these warnings were rejected by the Eastern District, which held that one warning was not significantly different” from previously rejected warnings, and the other was deficient because it improperly conveys the message that there is equal weight of authority for and against the proposition that glyphosate causes cancer, or that there is more evidence that it does… when the heavy weight of evidence in the record is that glyphosate is not known to cause cancer.” Thus, the statement was too controversial to pass muster under Zauderer.

Both parties filed for motions for summary judgment in September 2019. In June 2020, the District court granted summary judgment for the Plaintiffs and granted their application for a permanent injunction of Prop 65 enforcement of warning requirements for glyphosate. In granting this motion, the District Court determined that the appropriate standard of review for the compelled commercial speech at issue in the glyphosate warning was intermediate scrutiny” under Central Hudson rather than the lowest level of scrutiny under Zauderer. Applying intermediate scrutiny, the District Court found that although California did have a substantial interest in informing consumers of cancer risks under the second prong of Central Hudson, the misleading nature of the warning about glyphosate’s carcinogenicity did not directly advance that interest, as required by the third prong. Accordingly, the District Court permanently enjoined enforcement of the Prop 65 warning label for glyphosate.

California appealed to the Ninth Circuit, claiming the lower court erroneously rejected one of the proposed alternative warnings and that such judicial review should have been subject only to the lowest form of scrutiny under Zauderer. The Ninth Circuit disagreed, finding intermediate scrutiny to be the appropriate level of review because the proposed alternative warning at issue was still not purely factual and uncontroversial.” The Court noted that

The proposed warning that glyphosate is known to cause cancer’ was not purely factual because the word known’ carries a complex legal meaning that consumers would not glean from the warning without context and thus the word was misleading. Moreover, saying that something is carcinogenic or has serious deleterious health effects -- without a strong scientific consensus that it does -- is controversial.

Hence, applying the intermediate scrutiny standard, the Ninth Circuit declared that “[b]ecause none of the proposed glyphosate Prop 65 warnings are narrowly drawn to advancing California’s interest in protecting consumers from carcinogens, and California has less burdensome ways to convey its message than to compel Plaintiffs to convey it for them, the Prop 65 warning as applied to glyphosate is unconstitutional.”

A copy of the Ninth Circuit decision in Nat’l Association of Wheat Growers v. Bonta (9th Cir., No. 20-16758, 11/7/23) is available here.