throbber
Case: 20-16758, 07/30/2021, ID: 12188454, DktEntry: 69, Page 1 of 23
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`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`NATIONAL ASSOCIATION OF WHEAT
`GROWERS ET AL.,
`
` Case No. 20-16758
`
`Plaintiffs-Appellees,
`
`
`
`
`v.
`
`ROB BONTA,* IN HIS OFFICIAL
`CAPACITY AS ATTORNEY GENERAL
`OF THE STATE OF CALIFORNIA,
`
`Defendant-Appellant.
`
`On Appeal from the United States District Court
`for the Eastern District of California
`
`Case No. 2:17-CV-02401
`(Hon. William B. Shubb)
`
`APPELLANT’S UNOPPOSED MOTION TO
`HOLD CASE IN ABEYANCE OR DEFER
`SUBMISSION PENDING RULEMAKING
`
`
`ROB BONTA
`Attorney General of California
`TIMOTHY E. SULLIVAN
`Acting Senior Assistant Attorney
`General
`MEGAN K. HEY
`Acting Supervising Deputy Attorney
`General
`DENNIS A. RAGEN
`State Bar No. 106468
`
`
`LAURA J. ZUCKERMAN
`State Bar No. 161896
`Deputy Attorneys General
`1515 Clay Street, 20th Floor
`Oakland, CA 94612-0550
`Telephone: (510) 879-1299
`Fax: (510) 622-2270
`Email:
`Laura.Zuckerman@doj.ca.gov
`Attorneys for Appellant Rob Bonta,
`Attorney General of California
`
`
`*Rob Bonta was confirmed as the Attorney General of California on April 22,
`2021. See Fed. R. App. P. 43(c).
`
`
`

`

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`TABLE OF CONTENTS
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`
`
`BACKGROUND ........................................................................................... 4
`
`I.
`
`Statutory and Regulatory Background ...................................... 4
`
`A.
`
`Proposition 65 Warning Requirement ............................ 5
`
`II.
`
`Factual Background .................................................................. 7
`
`Page
`
`A.
`
`B.
`
`IARC’s 2015 Classification of Glyphosate as a
`Carcinogen ...................................................................... 7
`
`EPA’s and Other Regulatory Agencies’
`Conclusions ..................................................................... 7
`
`C. OEHHA’s Placement of Glyphosate on the
`Proposition 65 List .......................................................... 8
`
`III. Procedural History .................................................................... 8
`
`A.
`
`B.
`
`Litigation Below ............................................................. 8
`
`July 20, 2021, Notice of Proposed Rulemaking ........... 11
`
`ARGUMENT ............................................................................................... 13
`
`CONCLUSION ............................................................................................ 18
`
`CERTIFICATE OF COMPLIANCE ........................................................... 19
`
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`i
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`TABLE OF AUTHORITIES
`
`
`Page
`
`
`CASES
`
`Central Hudson Gas & Electric Corp. v. Public Service Commission
`of New York
`447 U.S. 557 (1980)....................................................................... 9, 15
`
`CTIA-The Wireless Ass’n v. City of Berkeley
`928 F.3d 832 (9th Cir. 2019) ......................................................... 9, 17
`
`Dowhal v. SmithKline-Beecham Consumer Healthcare
`32 Cal.4th 910 (2004) .......................................................................... 5
`
`Env’t Law Found. v. Wykle Research, Inc.
`134 Cal.App.4th 60 (2005) .................................................................. 6
`
`Ingredient Commc’n Council v. Lungren
`2 Cal.App.4th 1480 (1992) .................................................................. 6
`
`Wash. State Grange v. Wash. State Republican Party
`552 U.S. 442 (2008)....................................................................... 3, 14
`
`Zauderer v. Office of Disciplinary Counsel
`471 U.S. 626 (1985)....................................................................... 9, 15
`
`CONSTITUTIONAL PROVISIONS
`
`First Amendment ............................................................................. passim
`
`FEDERAL COURT RULES
`
`Ninth Circuit Rules 27-1 ........................................................................... 1
`
`Fed. R. App. P. 27 ..................................................................................... 1
`
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`ii
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`TABLE OF AUTHORITIES
`
`
`Page
`
`
`CALIFORNIA STATUTES
`
`Cal. Health & Safety Code
`§§ 24549.6–25249.14 .......................................................................... 4
`§ 25249.6 .......................................................................................... 4-6
`§§ 25249.8(a), (b) ................................................................................ 5
`§ 25249.11(b) ....................................................................................... 5
`§ 25249.12(a) ....................................................................................... 6
`
`Cal. Lab. Code
`§ 6382(b)(1) ..................................................................................... 5, 8
`§ 6382(d) .............................................................................................. 5
`
`CALIFORNIA REGULATIONS
`
`
`
`Cal. Code Regs. tit. 27
`§ 25306(m) ........................................................................................... 8
`§ 25600(a) ............................................................................................ 5
`§ 25601 ............................................................................................ 5, 6
`§§ 25601-25607.37 .............................................................................. 5
`
`
`
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`iii
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`Pursuant to Fed. R. App. P. 27 and Ninth Circuit Rules 27-1, Defendant-
`
`Appellant Rob Bonta, Attorney General of the State of California, respectfully
`
`requests that the Court hold this appeal in abeyance for 180 days, with status
`
`reports to be due every 60 days and upon completion of the rulemaking described
`
`herein. Plaintiffs-Appellees have stated that they do not oppose the request to hold
`
`the appeal in abeyance for 180 days, though they disagree that any final regulation
`
`promulgated by the Office of Environmental Health Hazard Assessment (OEHHA)
`
`would support a different outcome of their First Amendment claim.
`
`This appeal presents the question whether, in the absence of scientific
`
`consensus on the carcinogenicity of glyphosate, Proposition 65’s requirement that
`
`businesses provide warnings for glyphosate exposures violates the First
`
`Amendment. On July 20, 2021, OEHHA, the lead agency responsible for
`
`implementing Proposition 65, issued a Notice of Proposed Rulemaking directly
`
`relevant to the issue on appeal. The proposed regulation establishes “safe harbor”
`
`warning language specifically for exposures to glyphosate, the main ingredient in
`
`certain pesticides. If adopted by the agency in its proposed or similar form, the
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`new regulation would substantially alter the legal landscape at issue in this appeal,
`
`and likely render it unnecessary to pass upon certain of the novel First Amendment
`
`questions raised before this Court. Because the agency anticipates that the
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`rulemaking process will be completed within 180 days, and the language of the
`
`
`
`1
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`

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`proposed safe harbor warning may change while the appeal is still pending, the
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`Court should temporarily hold the appeal in abeyance.
`
`This case involves important issues of first impression concerning the
`
`constitutionality of health and safety laws like Proposition 65 that require
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`businesses to provide warnings to consumers and workers exposed to hazardous
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`chemicals. Specifically, this appeal concerns Proposition 65 warnings for
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`exposures to glyphosate, the principal ingredient in Monsanto’s Roundup and other
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`glyphosate-based pesticides. The district court permanently enjoined enforcement
`
`of any Proposition 65 warning requirement for glyphosate exposures on the ground
`
`that all such warnings would violate the First Amendment. The district court
`
`primarily found fault with a general safe harbor warning that would identify
`
`glyphosate as a chemical “known to [the State of California] to cause cancer,”
`
`pointing to the absence of a scientific consensus on the issue of glyphosate’s
`
`carcinogenicity. It then enjoined enforcement of other possible differently worded
`
`warnings, reasoning that such warnings would necessarily be misleading. As
`
`explained in detail in the Opening Brief and the Reply Brief, the district court’s
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`sweeping judgment should be reversed: the First Amendment does not forbid the
`
`State from requiring companies to warn people that exposure to a chemical could
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`cause cancer.
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`
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`2
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`

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`But recent developments could substantially change the scope of the issues on
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`appeal, and thus counsel heavily in favor of holding the appeal in abeyance. First,
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`awaiting resolution of the rulemaking is particularly important because the district
`
`court’s order broadly enjoined enforcement of any formulation of Proposition 65’s
`
`warning requirement for glyphosate exposures. OEHHA’s rulemaking presents
`
`specific warning language tailored to glyphosate that was not considered by the
`
`district court. Principles of judicial restraint weigh heavily in favor of waiting until
`
`OEHHA has concluded its formal rulemaking process so that the question whether
`
`all forms of Proposition 65 glyphosate warnings are unconstitutional can be
`
`addressed in the context of a concrete “safe harbor” warning. See, e.g., Wash.
`
`State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008).
`
`Second, OEHHA’s proposed regulation resolves many of the district court’s
`
`concerns about the warnings considered in the proceedings below. And if finalized
`
`in present (or similar) form, the safe harbor warning would shield businesses from
`
`enforcement actions and allow the businesses to fulfill their obligations under
`
`Proposition 65—without the type of compelled speech the district court believed to
`
`be problematic. Holding this case in abeyance for 180 days to await the outcome
`
`of the present rulemaking proceedings would thus best serve the interests of
`
`judicial economy and efficiency, and avoid the possibility of relevant
`
`circumstances shifting after this Court has heard oral argument but before it has
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`
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`3
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`

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`issued a decision.1 Because Plaintiffs-Appellees currently benefit from an
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`injunction in their favor, they would not be prejudiced by this delay in the State’s
`
`appeal. Plaintiffs-Appellees have stated that they do not oppose the request to hold
`
`the appeal in abeyance for 180 days, with status reports to be due every 60 days
`
`and upon completion of the rulemaking, though they disagree that any final
`
`regulation would support a different outcome of their First Amendment claim.
`
`I.
`
`STATUTORY AND REGULATORY BACKGROUND
`
`BACKGROUND
`
`The Safe Drinking Water and Toxic Enforcement Act, better known as
`
`Proposition 65, was enacted by initiative in 1986. See Cal. Health and Safety Code
`
`§§ 25249.5–25249.14. The law requires the Governor of California to publish a
`
`“list of those chemicals known to the state to cause cancer or reproductive toxicity
`
`within the meaning of this chapter.” Cal. Health & Safety Code § 25249.8(a). It
`
`requires businesses to give warnings before exposing people to these chemicals.
`
`Cal. Health & Safety Code § 25249.6. The warning requirement applies to
`
`exposures to chemicals that have been identified by any one of the expert
`
`organizations identified in the law and related regulations—including the
`
`
`1 Oral argument in this case has been scheduled for October 8, 2021, in San
`Francisco. See Dkt. No. 67. As an alternative to this request, the Court could
`consider deferring submission of the case after oral argument and ordering
`supplemental briefing on the effect of the regulation ultimately adopted by
`OEHHA.
`
`
`
`4
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`

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`International Agency for Research on Cancer (IARC)—as causing cancer, even if
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`other such agencies have made different findings. See Cal. Health & Safety Code
`
`§§ 25249.8(a) (b); Cal. Lab. Code §§ 6382(b)(1), (d).
`
`A. Proposition 65 Warning Requirement
`
`A business with ten or more employees must provide a clear and reasonable
`
`warning before it “knowingly and intentionally expose[s] any individual [in
`
`California] to a chemical known to the state to cause cancer or reproductive
`
`toxicity.” Cal. Health & Safety Code §§ 25249.6, 25249.11(b).
`
`Proposition 65 does not dictate the contents of the warning, where one is
`
`required, as long as the warning is “clear and reasonable” in conveying that the
`
`chemical is “known to the state to cause cancer[,]” or “words to that effect.” Cal.
`
`Health & Safety Code § 25249.6; see Dowhal v. SmithKline-Beecham Consumer
`
`Healthcare, 32 Cal.4th 910, 918 (2004). Pursuant to its statutory authority to adopt
`
`regulations to implement the statute and further its purposes, Cal. Health & Safety
`
`Code § 25249.12(a), OEHHA has adopted “safe harbor” warning methods and
`
`content for consumer product, occupational, and environmental exposures to listed
`
`chemicals. Cal. Code Regs. tit. 27, §§ 25601-25607.37. These warnings are not
`
`mandatory, but they are significant to businesses: as the name “safe harbor”
`
`suggests, such warnings are deemed to be “clear and reasonable” for purposes of
`
`statutory compliance. Cal. Code Regs. tit. 27, §§ 25600(a), 25601. “The
`
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`5
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`‘safe harbor’ is offered simply to provide the businesses choosing to use them
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`reasonable certainty that they will not be subjected to an enforcement action over
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`the warning they provide.” Env’t Law Found. v. Wykle Research, Inc., 134
`
`Cal.App.4th 60, 66-67 (2005) (quoting OEHHA’s Rev. Final Statement of Reasons
`
`[Oct. 6, 1988], at 7-8, available at
`
`https://oehha.ca.gov/media/downloads/crnr/12601fsornov1988.pdf). Most, but not
`
`all, of these safe harbor warnings, which include warnings for several specific
`
`chemical exposures, use the phrase, “known to the State of California to cause
`
`cancer,” but that language is not required by statute. RB 6-7; OB 13-14.
`
`
`
`Use of the safe harbor warning is optional. A business may use any warning
`
`method or content that is clear and reasonable. Cal. Health & Safety Code
`
`§ 25249.6; see Cal. Code Regs. tit. 27, § 25601. Whether a non-safe-harbor
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`warning is clear and reasonable is determined on a case-by-case basis. Ingredient
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`Commc’n Council v. Lungren, 2 Cal.App.4th 1480, 1491-92 (1992).
`
`In certain circumstances, it may be reasonable to provide additional factual
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`context in a warning. California courts have approved several Proposition 65
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`consent judgments in actions brought by the Attorney General in which the
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`proposed warnings departed from the standard safe harbor warning language by
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`providing additional information clarifying the risks of the exposures involved.
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`See OB 14-15.
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`6
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`

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`II. FACTUAL BACKGROUND
`
`A.
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`IARC’s 2015 Classification of Glyphosate as a Carcinogen
`
`As discussed in more detail in the Opening Brief, in March 2015, IARC, the
`
`cancer research arm of the United Nations World Health Organization, classified
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`glyphosate as “probably carcinogenic to humans (Group 2A),” its second highest
`
`classification, based on “sufficient evidence” that it causes cancer in animals, and
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`“limited evidence” in humans. OB 17-19, 22-23. In its Monograph, IARC cited
`
`evidence of a positive association in humans between exposures to glyphosate and
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`non-Hodgkin lymphoma in studies of humans in different geographic regions (the
`
`U.S., Canada, and Sweden). OB 22-23. The Monograph represented the
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`consensus findings of the 17-member Working Group. OB 23.
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`B. EPA’s and Other Regulatory Agencies’ Conclusions
`
`IARC’s scientific conclusion that glyphosate is a cancer hazard is not shared
`
`by all regulatory bodies. The EPA has stated that glyphosate is “not likely to be
`
`carcinogenic to humans.” OB 28. Regulatory agencies in other countries have
`
`also concluded that there is insufficient evidence that glyphosate causes cancer,
`
`either at all (i.e., it is not a cancer hazard), or that, even if glyphosate poses a
`
`hazard, it does not pose a risk to humans at the levels to which humans are
`
`typically exposed. OB 29; see AB 7-14. Other than IARC, which is both
`
`identified by name in the Labor Code and designated an “authoritative” body under
`
`the Proposition 65 regulations, the EPA is the only one of these agencies that is
`
`
`
`7
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`

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`considered an “authoritative” body under Proposition 65. See Cal. Lab. Code §
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`6382(b)(1); Cal. Code Regs. tit. 27, § 25306(m).
`
`C. OEHHA’s Placement of Glyphosate on the Proposition 65 List
`
`In September 2015, OEHHA issued a notice of its intention to add glyphosate
`
`to the Proposition 65 list of carcinogens based on IARC’s carcinogenicity
`
`determination. OB 24. OEHHA placed glyphosate on the Proposition 65 list on
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`July 7, 2017. OB 25. In the Notice of Intent to List, OEHHA explained that IARC
`
`had concluded that there was “sufficient evidence of carcinogenicity in
`
`experimental animals” and “‘limited evidence’ in humans.” Id.
`
`III. PROCEDURAL HISTORY
`
`A. Litigation Below
`
`Shortly after OEHHA placed glyphosate on its Proposition 65 list, but before
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`warning requirements for businesses exposing consumers to glyphosate were
`
`triggered by the statute, Monsanto and 13 agricultural and business groups initiated
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`this lawsuit against OEHHA’s director and the Attorney General in November
`
`2017.2 Plaintiffs sought a declaration that the listing of glyphosate and the
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`Proposition 65 warning requirement as applied to glyphosate were unconstitutional
`
`on First Amendment grounds. 11-ER-2327. The focus of the First Amendment
`
`
`2 OEHHA’s director was dismissed by stipulation, leaving the Attorney
`General the sole remaining defendant. Nat’l Ass’n of Wheat Growers v. Zeise,
`2:17-cv-2401-WBS-EFB, Dkt. No. 93.
`
`
`
`8
`
`

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`challenge to the warning requirement was on the general safe harbor warning as
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`applied to glyphosate. See 11-ER-2322-2323. In 2019, the parties cross-moved
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`for summary judgment. 11-ER-2383-84.
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`The Attorney General argued that the Proposition 65 warnings for glyphosate
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`satisfied the test articulated by the Supreme Court in Zauderer v. Office of
`
`Disciplinary Counsel, 471 U.S. 626 (1985). This Court in CTIA-The Wireless
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`Ass’n v. City of Berkeley, 928 F.3d 832, 845-49 (9th Cir. 2019) (CTIA II), affirmed
`
`that Zauderer required upholding disclosure mandates if they are purely factual,
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`uncontroversial, reasonably related to a substantial state interest, and not unduly
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`burdensome. The Attorney General also argued, in the alternative, that the
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`warnings he proposed satisfied the more stringent standard set forth in Central
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`Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S.
`
`557 (1980), because the State had “a substantial interest” in informing users of the
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`facts regarding the carcinogenicity of glyphosate, and that the regulation directly
`
`advanced this interest through burdens on speech no more “extensive than . . .
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`necessary to serve that interest.” 447 U.S. at 566, 571.
`
`Rejecting these arguments, the district court granted plaintiffs’ motion for
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`summary judgment, concluding that Proposition 65’s warning requirement could
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`not be applied to glyphosate in a manner consistent with the First Amendment’s
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`restrictions on compelled speech. See 1-ER-28-38. The court held that the First
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`9
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`

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`Amendment bars the Attorney General from requiring businesses to use the general
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`safe harbor warning language for warnings about the dangers of exposures to
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`glyphosate. 1-ER-23. The court also rejected the examples of alternative warnings
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`proposed by the Attorney General during the litigation, the most recent of which is
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`discussed in the briefs in this appeal:
`
`WARNING: This product can expose you to glyphosate. The State of
`California has determined that glyphosate is known to cause cancer under
`Proposition 65 because the International Agency for Research on Cancer has
`classified it as a carcinogen, concluding that there is sufficient evidence of
`carcinogenicity from studies in experimental animals and limited evidence in
`humans, and that it is probably carcinogenic to humans. The EPA has
`concluded that glyphosate is not likely to be carcinogenic to humans. For
`more information about glyphosate and Proposition 65, see
`www.P65warnings.ca.gov.
`
`1-ER-28-33; OB 50-77.
`
`
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`In its analysis, the district court focused on the fact that both the general,
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`most-commonly used regulatory safe harbor warning language and the Attorney
`
`General’s proposed warning would require a business to state that glyphosate is
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`“known” to cause cancer. 1-ER-23, 31. In the district court’s view, the absence of
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`a scientific consensus on the carcinogenicity of glyphosate and disagreement
`
`among certain regulatory bodies rendered any warning stating that California
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`“know[s]” that glyphosate causes cancer misleading to the ordinary viewer of the
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`10
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`warning.3 See 1-ER-23-24. The district court concluded that California could not
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`compel companies to disclose the findings of one expert agency (IARC) when
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`others disagree. 1-ER-25. The court also observed that the alternative language
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`proposed by the Attorney General—alerting consumers that the EPA holds a
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`different view—may not comply with the Attorney General’s guidance for
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`Proposition 65 settlements, and is misleading in any event because the language
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`suggests an even split among expert scientific agencies about the dangers posed by
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`glyphosate. 1-ER-28-31.
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`The district court therefore permanently enjoined all public and private
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`enforcement of any Proposition 65 warning requirement for glyphosate on the
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`ground that there could be no warning for glyphosate that (1) complied with both
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`Proposition 65 and the First Amendment and (2) would protect businesses from
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`actions by private enforcers of Proposition 65. 1-ER-28-38. The court entered
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`judgment on August 11, 2020. 1-ER-2. The Attorney General timely appealed.
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`B. July 20, 2021, Notice of Proposed Rulemaking
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`On July 20, 2021, OEHHA issued a notice of proposed rulemaking to propose
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`a new “safe harbor” warning specifically for exposures to glyphosate. The
`
`
`3 The court did not rule on whether the alternative warnings the Attorney
`General proposed would comply with Proposition 65, as it considered them
`misleading. The district court focused primarily on analyzing the language of the
`non-mandatory safe harbor warning, noting the protection it provides from suits by
`private enforcers. See 1-ER-22-27.
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`
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`11
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`warning is required only for exposures to glyphosate that businesses cannot
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`demonstrate fall below the regulatory “no significant risk level” or another “no
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`significant risk level” they can prove. See https://oehha.ca.gov/proposition-
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`65/crnr/notice-proposed-rulemaking-warnings-exposures-glyphosate-consumer-
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`products-new (“The new regulation would further the ‘right-to-know’ purposes of
`
`the Act and provide warning language tailored for exposures to glyphosate that
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`exceed its NSRL.”). The notice of proposed rulemaking states that businesses that
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`“choose to provide the [proposed] safe harbor warning language for such
`
`exposures would comply with the Act, because the content and methods provided
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`in the regulation are deemed ‘clear and reasonable’ by the lead agency for purposes
`
`of the Act.” Id.
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`The proposed warning would allow businesses to comply with Proposition 65
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`with the following safe harbor warning:
`
`CALIFORNIA PROPOSITION 65 WARNING. Using this product can
`expose you to glyphosate. The International Agency for Research on Cancer
`classified glyphosate as probably carcinogenic to humans. Other authorities,
`including USEPA, have determined that glyphosate is unlikely to cause
`cancer, or that the evidence is inconclusive. A wide variety of factors affect
`your personal cancer risk, including the level and duration of exposure to the
`chemical. For more information, including ways to reduce your exposure, go
`to www.P65Warnings.ca.gov/glyphosate.
`
`
`https://oehha.ca.gov/media/downloads/crnr/glyphosateproposedregtext071921.pdf
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`12
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`OEHHA’s reasons for proposing the regulation are set forth in its Initial
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`Statement Reasons, available at
`
`https://oehha.ca.gov/media/downloads/crnr/glyphosateisor071921.pdf.
`
`As described therein, OEHHA’s proposed safe harbor warning for glyphosate is
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`intended to comply fully with the First Amendment, while doing so in a manner
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`that avoids the concerns that the district court cited. Id. at 15 (“To facilitate
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`glyphosate warnings in a manner that avoids the First Amendment concerns that
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`have been raised about the standard consumer product warnings when used in the
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`context of glyphosate, OEHHA proposes to adopt a tailored warning.”).
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`
`
`The Notice was published in the California Regulatory Notice Register on
`
`July 23, 2021. https://oal.ca.gov/wp-content/uploads/sites/166/2021/07/2021-
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`Notice-Register-Number-30-Z-July-23-2021.pdf at 939-942. The statutorily
`
`required public comment period ends on September 7, 2021. OEHHA has
`
`informed the Attorney General that it anticipates completing its rulemaking by
`
`January 2022.
`
`ARGUMENT
`
`The Court should hold the appeal in abeyance for 180 days, pending the
`
`conclusion of the rulemaking process. The lone issue presented in the case is
`
`“[w]hether, in the absence of scientific consensus, the First Amendment prohibits
`
`California’s Proposition 65 from requiring a business to warn Californians before it
`
`
`
`13
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`

`

`Case: 20-16758, 07/30/2021, ID: 12188454, DktEntry: 69, Page 18 of 23
`
`
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`exposes them to significant amounts of glyphosate, a chemical that the
`
`International Agency for Research on Cancer, a worldwide leader in cancer
`
`research, has determined causes cancer in animals and is probably carcinogenic to
`
`humans.” OB 5. In the Attorney General’s view, the proposed warning, if it is
`
`ultimately adopted in the rulemaking process, could materially alter the First
`
`Amendment analysis in this appeal, potentially rendering unnecessary this Court’s
`
`resolution of several issues raised in the parties’ briefs.
`
`As a threshold matter, principles of judicial restraint weigh heavily in favor of
`
`awaiting the results of OEHHA’s rulemaking. The Court should not reach the
`
`issue whether the Proposition 65 warning requirement for glyphosate is
`
`constitutional until OEHHA’s rulemaking has concluded. Only then can the
`
`dispute be addressed in the context of a concrete “safe harbor” warning adopted
`
`after a formal rulemaking process, which will also present the Court with the
`
`opportunity to resolve the appeal on narrower grounds. See Wash. State Grange,
`
`552 U.S. at 450.
`
`
`
`Moreover, the warning language OEHHA has proposed in connection with
`
`the notice of proposed rulemaking addresses the principal issues the district court
`
`considered in rejecting Proposition 65 warnings for glyphosate. First, the district
`
`court concluded that both the general safe harbor warning and the Attorney
`
`General’s final proposed warning were unconstitutional because they required
`
`
`
`14
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`

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`Case: 20-16758, 07/30/2021, ID: 12188454, DktEntry: 69, Page 19 of 23
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`
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`businesses to state that glyphosate is “known to cause cancer.” 1-ER-23, 31. The
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`district court considered such a representation to be misleading, and therefore not
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`permitted under either Zauderer or Central Hudson, because the scientific
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`conclusion of one designated agency does not make the fact “known.” See 1-ER-
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`23-25, 31-35. OEHHA’s proposed warning omits such language. Rather than
`
`stating that glyphosate is “known to cause” cancer, the proposed warning simply
`
`states that the International Agency for Research on Cancer found glyphosate to be
`
`a probable human carcinogen, which IARC indisputably has done.
`
`
`
`Second, the district court also faulted the Attorney General’s warning for
`
`being misleading because, in its view, it implied that only one agency, the EPA,
`
`had disagreed with IARC. See 1-ER-31-33. OEHHA’s proposed warning,
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`however, allows businesses to convey the fact that other agencies, including the
`
`EPA, disagree, or have found the evidence of carcinogenicity to be inconclusive.
`
`This addresses the district court’s concern that the Attorney General’s proposed
`
`warning, though mentioning the EPA’s contrary finding, could give the impression
`
`that there was an equal split of authority on the question of glyphosate’s
`
`carcinogenicity, and thus be misleading. Id.
`
`
`
`Third, the district court also raised concerns that the Attorney General’s
`
`suggested language would not insulate businesses from enforcement action
`
`because private enforcers could challenge the warning language as inadequate. See
`
`
`
`15
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`

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`Case: 20-16758, 07/30/2021, ID: 12188454, DktEntry: 69, Page 20 of 23
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`
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`1-ER-28-29. In the proposed rulemaking, OEHHA explains that its warning, if
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`adopted by regulation as a formal “safe harbor,” would insulate from enforcement
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`action those businesses that choose to use it. See https://oehha.ca.gov/proposition-
`
`65/crnr/notice-proposed-rulemaking-warnings-exposures-glyphosate-consumer-
`
`products-new and proposed new regulatory text (to be added as sections 25607.48
`
`and 25607.49 of Title 27 of the California Code of Regulations).
`
`
`
`In sum, if the proposed regulation is finalized, it would materially alter the
`
`First Amendment analysis in this appeal. Where the district court focused
`
`exclusively on the general safe harbor warning and the Attorney General’s
`
`proposed alternative warnings during the litigation, this Court would be able to
`
`focus instead on a new safe harbor warning promulgated by California’s lead
`
`agency following a formal rulemaking process. If adopted, the regulation will
`
`have the force of law.4 Once the rulemaking process concludes, the Attorney
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`General could provide additional briefing about how any final adopted warning
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`language satisfies relevant First Amendment standards—either in supplemental
`
`briefing the Court orders the parties to submit, or through a motion for remand to
`
`the district court to consider such issues in the first instance. As the language is
`
`
`4 Although the district court expressed doubt about whether a warning that
`complied with the First Amendment could also comply with Proposition 65, it did
`not resolve this issue when it ruled on the parties’ cross-motions for summary
`judgment. Plaintiffs-Appellees argue in their answering brief that it could not.
`
`
`
`16
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`

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`Case: 20-16758, 07/30/2021, ID: 12188454, DktEntry: 69, Page 21 of 23
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`
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`presently proposed, it satisfies the First Amendment, because it is factual, not
`
`misleading, and “even though it can be tied in some way to a controversial issue,”
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`it is not “for that reason alone, controversial.” CTIA II, 928 F.3d at 845. It also
`
`advances the vital state interest in providing users with important facts about the
`
`carcinogenicity of glyphosate before they are exposed to significant amounts of the
`
`pesticide. And because the district court’s judgment broadly enjoined enforcement
`
`of any Proposition 65 warning language, the new rulemaking, when finalized, will
`
`allow the Court to address the issues in dispute in the context of a concrete,
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`formally-pro

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