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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 1 of 34
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`UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF CALIFORNIA
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`----oo0oo----
`
`No. 2:17-cv-2401 WBS EFB
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`
`
`MEMORANDUM AND ORDER RE:
`CROSS MOTIONS FOR SUMMARY
`JUDGMENT
`
`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,
`
`Plaintiffs,
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`v.
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`XAVIER BECERRA, in his official
`capacity as Attorney General of
`the State of California,
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`Defendant.
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`
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`----oo0oo----
`
`This case concerns California’s Proposition 65, which,
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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 2 of 34
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`among other things, requires warning labels for products
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`containing chemicals known to the state of California to cause
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`cancer, as determined by certain outside entities. The parties
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`have filed cross motions for summary judgment on plaintiffs’
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`claim that the warning requirement, as applied to the chemical
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`glyphosate,1 violates the First Amendment of the United States
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`Constitution.2 (Docket Nos. 117, 124.)
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`I. Background
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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 (the “Proposition 65
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`list”) known to the State to cause cancer, as determined by,
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`inter alia, certain outside entities, including the United States
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`Environmental Protection Agency (“EPA”), the United States Food
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`and Drug Administration (“FDA”), and the International Agency for
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`Research on Cancer (“IARC”).3 AFL-CIO v. Deukmejian, 212 Cal.
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`1
`Glyphosate is an herbicide widely used to control
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`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 (Docket
`No. 23).)
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`2
`Lauren Zeise, director of the Office of Environmental
`Health Hazard Assessment, was initially named in the complaint
`and included in the court’s preliminary 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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`3
`The IARC was founded in 1965 as the cancer
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`research arm of the United Nations’ World Health Organization and
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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 3 of 34
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`App. 3d 425, 431-34 (3d Dist. 1989) (citing, inter alia, Cal.
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`Labor Code 6382(b)(1)); see also Cal. Code Regs. tit. 27 §§
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`25306(m), 25904(b)4 (“A chemical or substance shall be included
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`on the list [of chemicals known to the state to cause cancer] if
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`it is classified by the International Agency for Research on
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`Cancer” as “carcinogenic to humans” or “[p]robably carcinogenic
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`to humans” and there is “sufficient evidence of carcinogenicity
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`in experimental 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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`reasonable” warning, with this prohibition taking effect 12
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`months after the chemical has been listed. Cal. Health & Safety
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`Code §§ 25249.6, 25249.10(b); Deukmejian, 212 Cal. App. 3d at
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`exists to “promote international collaboration in cancer
`research.” (Zuckerman Decl. (Docket No. 130), Ex. C at 5-6
`(Docket No. 133-2).) The United States was a founding member of
`the IARC and remains a member. (Zuckerman Decl., Ex. C 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. A at 10
`(Docket No. 134-1).)
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`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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`4
`Several new versions of the Proposition 65
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`implementing regulations took effect on August 30, 2018, after
`this case was filed. This opinion refers to the current versions
`of the regulations unless otherwise noted.
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`California’s Office of Environmental Health Hazard
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`Assessment (“OEHHA”) is the agency responsible for implementing
`Proposition 65. Cal. Code Regs. tit. 27 div. 4 ch. 1 Preamble.
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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 4 of 34
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`431-34. While the statute does not explain what constitutes a
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`clear and reasonable warning, OEHHA regulations provide two “safe
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`harbor” warnings which are per se clear and reasonable. The
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`first safe harbor warning contains a black exclamation point in a
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`yellow triangle with the words “WARNING: This product can expose
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`you to chemicals including [name of one or more chemicals], which
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`is [are] known to the State of California to cause cancer. For
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`more information go to www.P65Warnings.ca.gov.” Cal. Code Regs.
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`tit. 27, § 25603(a). The second safe harbor warning, the “short
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`form” warning, includes a black exclamation point in a yellow
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`triangle and the words “WARNING: Cancer –
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`www.P65Warnings.ca.gov.” Cal. Code Regs. tit. 27, § 25603(b).
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`Failure to comply with Proposition 65 may result in
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`penalties up to $2,500 per day for each failure to provide an
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`adequate warning, and enforcement actions may be brought by the
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`California Attorney General, district attorneys, certain city
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`attorneys and city prosecutors, or private citizens, who may
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`recover attorney’s fees. Cal. Health & Safety Code § 25249.7;
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`Cal. Code Regs. tit. 11 § 3201.
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`In 2015, the IARC classified glyphosate as “probably
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`carcinogenic” to humans based on “sufficient evidence” that it
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`caused cancer in experimental animals and “limited evidence” that
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`it could cause cancer in humans. (Zuckerman Decl., Ex. A, at
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`361-99 (Docket No. 134-4, 134-5).) However, several other
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`organizations, including the EPA, other agencies within the World
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`Health Organization, and government regulators from multiple
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`countries, have concluded that there is insufficient or no
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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 5 of 34
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`evidence that glyphosate causes cancer.6 (Heering Decl. (Docket
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`No. 117-4), Exs. N, R, S, T, U, Z, AA, MM, NN, OO, PP, QQ, RR,
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`SS, WW, XX, CCC (Docket Nos. 117-18, 117-22 to 117-25, 117-31,
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`117-32, 117-44 to 117-50, 117-54, 117-55, 117-60) (reports or
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`findings from, inter alia, the EPA, European Commission Health &
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`Consumer Protection Directorate-General, WHO Int’l Programme on
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`Chem. Safety, Germany, U.N. Food & Agric. Org., Canada, European
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`Chems. Agency, Australia, New Zealand, Japan, and South Korea).
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`The EPA reaffirmed its determination in April 2019, and then in
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`August 2019, stated that it would not approve herbicide labels
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`with a Proposition 65 warning, as such labels would be false and
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`misleading and “misbranded” under the federal herbicide labeling
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`law, 7 U.S.C. § 136a. (Heering Decl. Exs. E, WW (Docket Nos.
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`117-9, 1117-54).)
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`As a result of the IARC’s classification of glyphosate
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`as probably carcinogenic, the OEHHA listed glyphosate as a
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`chemical known to the state of California to cause cancer on July
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`7, 2017, and thus the attendant warning requirement was to take
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`effect on July 7, 2018. (See Heering Decl., Ex. II (Docket No.
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`117-40).) This court preliminarily enjoined the warning
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`requirement on February 26, 2018 (Docket No. 75), and thus at no
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`time have plaintiffs been required to post glyphosate Proposition
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`65 warnings for their products.
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`II. Procedural History
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`After a hearing, the court preliminarily enjoined the
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`Notably, the OEHHA had previously determined that there
`was insufficient evidence of glyphosate’s carcinogenicity. (See
`Heering Decl., Exs. P, Q (Docket Nos. 117-20, 117-21).)
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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 6 of 34
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`Attorney General from enforcing California Health & Safety Code §
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`25249.6’s requirement that any person in the course of doing
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`business provide a clear and reasonable warning before exposing
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`any individual to glyphosate as against plaintiffs, plaintiffs’
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`members, and all persons represented by plaintiffs. (Docket No.
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`75.) In doing so, the court first found that plaintiff’s First
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`Amendment challenge was ripe, because plaintiffs faced a
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`significant risk of injury based on, among other things, the
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`threat of private suits and the costs of testing their products
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`to avoid or defend such suits.
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`The court then found that a Proposition 65 warning for
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`glyphosate was not purely factual and uncontroversial under the
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`First Amendment, as required for compelled commercial speech
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`under Zauderer v. Office of Disciplinary Counsel of Supreme Court
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`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, 1117-19 (9th Cir.
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`2017) (“CTIA I”).7 The court explained, among other things, that
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`Proposition 65 and its regulations required a warning stating
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`that the chemical was known to the State of California to cause
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`cancer, and this warning would be misleading to the ordinary
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`consumer because “[i]t is inherently misleading for a warning to
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`The Ninth Circuit’s 2017 decision in CTIA I was vacated
`by the Supreme Court and remanded for further consideration in
`light of National Institute of Family and Life Advocates v.
`Becerra, 138 S. Ct. 2361 (2018) (“NIFLA”). 138 S. Ct. 2708
`(2018). However, on remand, the panel issued a new decision that
`once again explained that “a statement may be literally true but
`nonetheless misleading and, in that sense, untrue.” CTIA-The
`Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 847 (9th Cir.
`2019) (“CTIA II”), cert. denied, 140 S. Ct. 658 (2019).
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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 7 of 34
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`state that a chemical is known to the state of California to
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`cause cancer based on the finding of one organization . . . when
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`apparently all other regulatory and governmental bodies have
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`found the opposite.” Id. at 16-17. In doing so, the court did
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`not determine, and was not required to determine, (1) whether
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`glyphosate in fact caused cancer, (2) whether a statement that
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`glyphosate was known to cause cancer would be factual and
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`uncontroversial where there was more evidence in support of the
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`chemical’s carcinogenicity, or (3) whether Proposition 65’s
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`statutory and regulatory regime was good policy.
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`The court subsequently denied defendant’s motion for
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`reconsideration under Federal Rule of Civil Procedure 59(e).
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`(Docket No. 97.) The court first held that it had not committed
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`clear error in its order granting a preliminary injunction.
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`Second, the court found that the much of the “new evidence”
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`introduced by defendant could have been presented in opposition
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`to the motion for a preliminary injunction, and the evidence
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`defendant relied on did not change the court’s conclusion that
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`the Proposition 65 warning as to glyphosate violated the First
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`Amendment. In doing so, the court rejected two alternative
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`warnings proposed by defendant because those warnings still
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`conveyed the message that glyphosate was known to cause cancer or
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`suggested that there was equal or more weight for the proposition
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`that glyphosate caused cancer than for the proposition that it
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`did not.
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`Plaintiffs now seek a permanent injunction barring
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`enforcement of the Proposition 65 warning as to glyphosate.
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`Defendant in response seeks a determination that plaintiffs’
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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 8 of 34
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`First Amendment claim fails as a matter of law.8
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`III. Ripeness
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`Defendant continues to argue that plaintiffs’ First
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`Amendment challenge is not ripe, despite the court’s prior
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`determination of ripeness in granting the preliminary injunction.
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`Courts must examine whether a case is ripe because their role “is
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`neither to issue advisory opinions nor to declare rights in
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`hypothetical cases, but to adjudicate live cases or controversies
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`consistent with the powers granted the judiciary in Article III
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`of the Constitution.” Thomas v. Anchorage Equal Rights Comm’n,
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`220 F.3d 1134, 1138 (9th Cir. 2000).
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`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.” Id.
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`(citations and internal quotations omitted). Under the
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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. Id. at 1142. Here, the
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`court once again finds that plaintiffs’ First Amendment challenge
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`is ripe under both the constitutional and prudential inquiries.
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`First, plaintiffs still face a significant risk of
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`Plaintiffs do not address the other causes of action in
`the First Amended Complaint, specifically its claims under the
`Supremacy Clause of the U.S. Constitution and the Due Process
`Clause of the Fourteenth Amendment. The court expresses no
`opinion on those claims.
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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 9 of 34
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`injury notwithstanding defendant’s claim that no warnings are
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`required for plaintiffs’ products because they likely contain
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`glyphosate levels below the “no significant risk level” (“NSRL”
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`or “safe harbor” level) that was adopted after the filing of this
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`case. The court recognizes that (1) Proposition 65 provides that
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`no warning is required for a product where an exposure poses no
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`significant risk assuming lifetime exposure at the level in
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`question, Cal. Health & Safety Code § 25249.10; (2) no warnings
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`are required if the daily exposure caused by a product is below
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`the OEHHA’s safe harbor level under Cal. Code Regs. tit. 27 §
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`25705; (3) the OEHHA adopted a safe harbor level of 1,100
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`micrograms per day for glyphosate on July 1, 2018, Cal. Code
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`Regs. tit. 27, § 25705; (4) some testing of certain foods has
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`found glyphosate levels that would lead to expected daily
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`exposure levels well below that threshold (Lee Decl. ¶¶ 13-21
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`(Docket No. 129)); and (5) some evidence indicates that consumer
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`use of glyphosate from home and garden use of glyphosate would
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`lead to daily exposure levels well below that threshold (Sandy
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`Decl. ¶ 5 (Docket No. 127)).9
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`Nevertheless, assuming plaintiffs’ products were tested
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`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 actions. Plaintiffs have
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`provided evidence that private plaintiffs have brought
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`Plaintiffs dispute the calculations of daily and
`lifetime exposure levels, as well as the cost and difficulty of
`testing products, though the court does not reach this issue.
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`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 10 of 34
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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.10 The fact that the
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`statute allows any person to file an enforcement suit makes the
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`threat of such suits more credible. See, e.g., Susan B. Anthony
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`List v. Driehaus, 134 S. Ct. 2334, 2345 (2014) (plaintiffs showed
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`credible risk of enforcement because, inter alia, the law at
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`issue allowed complaints from private parties who were not
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`“constrained by explicit guidelines or ethical obligations”);
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`Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1173 (9th Cir.
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`2018) (party had standing because “even if the Attorney General
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`would not enforce the law” at issue, private citizens had a right
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`10 (See, e.g., Norris Decl. ¶¶ 10-12 (Docket No. 117-62)
`(discussing Physicians Comm. for Responsible Med. v. McDonald’s
`Corp., Los Angeles Superior Court, Case No. BC383722, a lawsuit
`lasting for 6 years brought against 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. ¶¶ 30-33 (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 (N.D. Cal. 2015)
`(denying motion to dismiss in Proposition 65 enforcement action
`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., Inc. v. Moore, 159 Cal. App.
`4th 262 (2d Dist. 2008) (affirming dismissal of suit seeking
`declaration that private party could not initiate Proposition 65
`litigation because safe harbor level was not exceeded).
`
`
`
`
`
`
`
`
`10
`
`
`
`

`

`
`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 11 of 34
`
`1
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`of action to sue for damages).
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`2
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`Such suits, which can be brought notwithstanding the
`
`3
`
`Attorney General’s finding of no merit, are enabled by the
`
`4
`
`statute itself, as defendants in Proposition 65 enforcement
`
`5
`
`actions have the burden of showing that their product’s
`
`6
`
`glyphosate exposure falls below the no significant risk level in
`
`7
`
`a Proposition 65 enforcement action. Cal. Health & Safety Code §
`
`8
`
`25249.10(c). Thus, plaintiffs, who have stated they intend to
`
`9
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`give no warning based on their constitutional right against
`
`10
`
`compelled speech, face a credible threat of enforcement as a
`
`11
`
`result of exercising such right, regardless of the enactment of
`
`12
`
`the safe harbor level for glyphosate.11 See Susan B. Anthony
`
`13
`
`List, 134 S. Ct. at 2342-46 (plaintiff may bring pre-enforcement
`
`14
`
`suit where he has an intention to engage in a course of conduct
`
`15
`
`with an arguable constitutional interest but proscribed by law,
`
`16
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`“and there exists a credible threat of prosecution”).
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`17
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`Defendant claims that enforcement actions would be
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`18
`
`unlikely in the event that a product did not exceed the safe
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`19
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`20
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`21
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`22
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`23
`
`24
`
`25
`
`26
`
`27
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`28
`
`
`11 The court also rejects the Attorney General’s
`contentions, raised for the first time in his reply in support of
`his cross motion, that plaintiffs have provided no evidence of
`any concrete plans to violate the law and that the First
`Amendment dispute is more appropriate for a state court
`enforcement action. (See Docket No. 150 at 4-7.) Even assuming
`these arguments were properly raised, (1) plaintiffs have already
`shown and continue to credibly claim that they have no intention
`of providing Proposition 65 warnings for glyphosate, and (2)
`plaintiffs need not wait for an enforcement action to challenge a
`state law on First Amendment grounds, notwithstanding the ability
`to raise the challenge as a defense to the enforcement action.
`Given the credible threat of enforcement, it is not necessary
`that plaintiffs first expose themselves to liability before
`challenging Proposition 65 on constitutional grounds. See Susan
`B. Anthony List, 134 S. Ct. at 2342-46.
`
`
`
`
`
`
`
`11
`
`
`
`

`

`
`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 12 of 34
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`1
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`harbor level for glyphosate, citing both the steps required to
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`2
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`file suit (which require 60 days’ notice and the filing of a
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`3
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`certificate of merit) and the fact that the Attorney General will
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`4
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`likely inform the private enforcer that (1) there was no
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`5
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`violation, (2) an action was not in the public interest, and (3)
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`6
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`the action would not warrant civil penalties and fees. Defendant
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`7
`
`also notes that if the private enforcer refused to withdraw its
`
`8
`
`notice of violation, the Attorney General would then post a
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`9
`
`letter on the Attorney General website stating that there was no
`
`10
`
`merit to the proposed enforcement action, and that plaintiffs may
`
`11
`
`be ordered to pay attorney’s fees and costs for frivolous
`
`12
`
`enforcement actions under Cal. Health & Safety Code §
`
`13
`
`25249.7(h)(2) and Cal. Code Civ. Proc. § 128.5.
`
`14
`
`Notwithstanding these purported barriers, one
`
`15
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`California Court of Appeal has explained that the instigation of
`
`16
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`Proposition 65 enforcement actions is “easy -- and almost
`
`17
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`absurdly easy at the pleading stage and pretrial stages.” See
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`18
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`Consumer Def. Grp. v. Rental Hous. Indus. Members, 137 Cal. App.
`
`19
`
`4th 1185, 1215 (4th Dist. 2006). At best, the possible sanction
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`20
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`of attorney’s fees appears to be a modest deterrence to suits, if
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`21
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`any, given that this sanction is only available if the trial
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`22
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`court “determines that there was no actual or threatened exposure
`
`23
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`to a listed chemical” at any level and also finds that “there was
`
`24
`
`no credible factual basis for the certifier’s belief that an
`
`25
`
`exposure to a listed chemical had occurred or was threated.” See
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`26
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`Cal. Health & Safety Code § 25249.7(h)(2). In other words, to
`
`27
`
`bring suit and avoid sanctions, a private plaintiff need only
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`28
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`credibly allege that that a product has some amount of the
`
`
`
`
`
`
`
`12
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`
`
`

`

`
`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 13 of 34
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`1
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`chemical at issue, not that the amount of the chemical is harmful
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`2
`
`or that it exceeds the safe harbor level.
`
`3
`
`Further, in order to take advantage of the safe harbor,
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`4
`
`plaintiffs would be required to test their products to determine
`
`5
`
`whether their products exceeded the safe harbor level, incurring
`
`6
`
`the attendant costs, which is in itself is a cognizable injury.
`
`7
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`See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
`
`8
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`154-55 (2010) (farmers seeking injunctive relief had standing
`
`9
`
`based on, inter alia, the cost of testing crops that would be
`
`10
`
`required if an injunction was not granted).
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`11
`
`The court also rejects defendant’s contention that the
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`12
`
`First Amendment challenge is unripe because defendants may defend
`
`13
`
`any enforcement action by showing their products do not pose a
`
`14
`
`significant cancer risk, even if their products exceed the safe
`
`15
`
`harbor level. Facing enforcement actions, or even the possible
`
`16
`
`risk of enforcement actions, are cognizable injuries, even if a
`
`17
`
`business can ultimately prove that its product is not a cancer
`
`18
`
`risk. See, e.g., Susan B. Anthony List, 134 S. Ct. 2334 at 2342-
`
`19
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`46.12
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`20
`
` Based on the foregoing, the court will deny
`
`21
`
`defendant’s motion for summary judgment to the extent it seeks
`
`22
`
`dismissal based on ripeness.
`
`23
`
`IV. Merits
`
`24
`
`25
`
`26
`
`27
`
`28
`
`To determine whether the Proposition 65 requirement for
`
`
`12 As they did in their motion for a preliminary
`injunction, plaintiffs claim that they will lose sales if they
`decline to provide warnings for their products. The court
`expresses no opinion as to this claim in determining that
`plaintiffs’ First Amendment claim is ripe.
`
`
`
`
`
`
`
`13
`
`
`
`

`

`
`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 14 of 34
`
`1
`
`glyphosate violates the First Amendment, the court must first
`
`2
`
`determine the level of scrutiny to apply -- intermediate scrutiny
`
`3
`
`under Central Hudson Gas & Electric Corp. v. Public Service
`
`4
`
`Commission, 447 U.S. 557 (1980), or a lower level of scrutiny
`
`5
`
`under Zauderer v. Office of Disciplinary Counsel of Supreme Court
`
`6
`
`of Ohio, 471 U.S. 626 (1985).
`
`7
`
`Under Central Hudson, the government may restrict
`
`8
`
`commercial speech “that is neither misleading nor connected to
`
`9
`
`unlawful activity, as long as the governmental interest in
`
`10
`
`regulating the speech is substantial.” Am. Beverage Ass’n v.
`
`11
`
`City & Cty. of San Francisco, 916 F.3d 749, 755 (9th Cir. 2019)
`
`12
`
`(quoting Central Hudson, 447 U.S. at 564). Under this
`
`13
`
`intermediate level of scrutiny, the law at issue “must ‘directly
`
`14
`
`advance the governmental interest asserted’ and must not be ‘more
`
`15
`
`extensive than is necessary to serve that interest.’” Id.
`
`16
`
`(quoting Central Hudson, 447 U.S. at 566).
`
`17
`
`However, a lower standard applies to certain compelled
`
`18
`
`commercial speech. In Zauderer, 471 U.S. at 651, the Supreme
`
`19
`
`Court held that the government may require commercial speakers to
`
`20
`
`disclose “purely factual and uncontroversial information” about
`
`21
`
`commercial products or services, as long as the disclosure
`
`22
`
`requirements are “reasonably related” to a substantial government
`
`23
`
`interest and are neither “unjustified [n]or unduly burdensome.”
`
`24
`
`See also CTIA II, 928 F.3d at 842-43 (quoting Zauderer); Am.
`
`25
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`Beverage Ass’n, 916 F.3d at 755 (same).
`
`26
`
`The case law on the level of scrutiny for compelled
`
`27
`
`commercial speech is somewhat unsettled. Plaintiffs argue that
`
`28
`
`compelled commercial speech is subject to Central Hudson’s
`
`
`
`
`
`
`
`14
`
`
`
`

`

`
`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 15 of 34
`
`1
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`intermediate scrutiny if it cannot meet all the requirements of
`
`2
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`Zauderer. In other words, according to plaintiffs, a court
`
`3
`
`should first examine whether the compelled commercial speech
`
`4
`
`meets Zauderer’s lower standard, and if not, the court should
`
`5
`
`then proceed to examine whether it meets Central Hudson’s
`
`6
`
`requirements.
`
`7
`
`However, neither the Supreme Court nor the Ninth
`
`8
`
`Circuit have elaborated such a rule, though they have hinted at
`
`9
`
`one. In NIFLA, the Supreme Court reviewed certain disclosure
`
`10
`
`requirements that applied to pro-choice pregnancy centers. The
`
`11
`
`court applied Zauderer’s lower scrutiny to one required
`
`12
`
`disclosure and found that the state had not shown that the
`
`13
`
`disclosure was not unjustified or unduly burdensome. Having made
`
`14
`
`that determination, the court held that the disclosure violated
`
`15
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`the First Amendment, without proceeding to examine whether the
`
`16
`
`provision also failed intermediate scrutiny. 138 S. Ct. at 2377-
`
`17
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`78. At the same time, the NIFLA court examined a separate but
`
`18
`
`related disclosure rule under intermediate scrutiny, holding that
`
`19
`
`the Zauderer standard did not apply because “[t]he notice in no
`
`20
`
`way relates to the services that licensed clinics provide.
`
`21
`
`Instead, it requires these clinics to disclose information about
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`22
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`state-sponsored services -- including abortion, anything but an
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`23
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`‘uncontroversial’ topic.” 138 S. Ct. at 2372.13
`
`24
`
`25
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`26
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`27
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`28
`
`
`13 In NIFLA, the court applied the Zauderer standard to a
`provision that required unlicensed pregnancy centers to disclose
`on-site and in all advertising that they were not licensed
`medical providers. The court applied intermediate scrutiny to a
`provision that required licensed pregnancy centers to disclose
`on-site and to all clients that the State of California provided
`free or low-cost family planning services, including abortion, as
`
`
`
`
`
`
`
`15
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`
`
`

`

`
`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 16 of 34
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`1
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`After NIFLA was issued, the Ninth Circuit in American
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`2
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`Beverage explained that “Zauderer provides the appropriate
`
`3
`
`framework to analyze a First Amendment claim involving compelled
`
`4
`
`commercial speech.” 916 F.3d at 756. The en banc panel in
`
`5
`
`American Beverage reviewed the denial of a preliminary injunction
`
`6
`
`of an ordinance requiring warnings on advertisements for certain
`
`7
`
`sugar-sweetened beverages. The court held that the requirement
`
`8
`
`that the warning cover 20% of the advertisement imposed an undue
`
`9
`
`burden and thus failed Zauderer.14 Having made this
`
`10
`
`determination, the court reversed the denial of a preliminary
`
`11
`
`injunction, without proceeding to determine whether the ordinance
`
`12
`
`withstood intermediate scrutiny under Central Hudson. Id. at
`
`13
`
`756-58.
`
`14
`
`In light of these cases, it appears that the court
`
`15
`
`should proceed to examine the warning requirement for glyphosate
`
`16
`
`under Zauderer’s lower standard only if the requirement is purely
`
`17
`
`factual and uncontroversial. If “[t]he Zauderer standard does
`
`18
`
`not apply here” because the warning requirement is not purely
`
`19
`
`factual and uncontroversial, see NIFLA, 138 S. Ct. at 2372, the
`
`20
`
`court should then proceed to examine the warning requirement
`
`21
`
`under Central Hudson’s intermediate scrutiny.
`
`22
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`23
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`24
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`25
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`26
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`27
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`28
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`
`
`well as a telephone number to obtain information about such
`services. 138 S. Ct. at 2368-78.
`
`14 Finding that the warning requirement was unduly
`burdensome, the American Beverage en banc panel declined to
`examine whether the warning was factual and uncontroversial. 916
`F.3d at 757. This determination follows NIFLA’s implied holding
`that if a disclosure requirement is unjustified or unduly
`burdensome, a court may assume that the Zauderer standard applies
`and need not examine the disclosure requirement under
`intermediate scrutiny. See NIFLA, 138 S. Ct. at 2376-77.
`
`
`
`
`
`
`
`16
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`
`
`

`

`
`Case 2:17-cv-02401-WBS-EFB Document 155 Filed 06/22/20 Page 17 of 34
`
`1
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`A.
`
`Does Zauderer apply?
`
`Before determining whether the Proposition 65 warning
`
`3
`
`requirement survives under Zauderer’s lower scrutiny, the court
`
`4
`
`must determine whether Zauderer even applies. As discussed
`
`5
`
`above, Zauderer applies where the government requires speakers to
`
`6
`
`disclose “purely factual and uncontroversial information” about
`
`7
`
`commercial products or serv

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