FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`CALIFORNIA CHAMBER OF
`COMMERCE,
`
`Plaintiff-Appellee,
`
`
`
`v.
`
`
`COUNCIL FOR EDUCATION AND
`RESEARCH ON TOXICS, a California
`public benefit corporation,
`Intervenor-Defendant-Appellant.
`
`
`
`
`
`No. 21-15745
`
`D.C. No.
`2:19-cv-02019-
`KJM-JDP
`
`
`OPINION
`
`
`
`
`
`Appeal from the United States District Court
`for the Eastern District of California
`Kimberly J. Mueller, Chief District Judge, Presiding
`
`Argued and Submitted January 12, 2022
`San Francisco, California
`
`Filed March 17, 2022
`
`Before: Ronald M. Gould, Mark J. Bennett, and
`Ryan D. Nelson, Circuit Judges.
`
`Opinion by Judge Bennett
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`CALIFORNIA CHAMBER OF
`COMMERCE,
`
`Plaintiff-Appellee,
`
`
`
`v.
`
`
`COUNCIL FOR EDUCATION AND
`RESEARCH ON TOXICS, a California
`public benefit corporation,
`Intervenor-Defendant-Appellant.
`
`
`
`
`
`No. 21-15745
`
`D.C. No.
`2:19-cv-02019-
`KJM-JDP
`
`
`OPINION
`
`
`
`
`
`Appeal from the United States District Court
`for the Eastern District of California
`Kimberly J. Mueller, Chief District Judge, Presiding
`
`Argued and Submitted January 12, 2022
`San Francisco, California
`
`Filed March 17, 2022
`
`Before: Ronald M. Gould, Mark J. Bennett, and
`Ryan D. Nelson, Circuit Judges.
`
`Opinion by Judge Bennett
`
`
`
`
`2
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`SUMMARY*
`
`Civil Rights
`
`
`
`
`In an action brought pursuant to 42 U.S.C. § 1983, the
`
`panel affirmed the district court’s order granting California
`Chamber of Commerce’s motion for a preliminary
`injunction that prohibited the Attorney General and his
`officers, employees, or agents, and all those in privity or
`acting in concert with those entities or individuals, including
`private enforcers from filing or prosecuting new lawsuits to
`enforce the Proposition 65 warning requirement for cancer
`as applied to acrylamide in food and beverage products.
`
`Proposition 65 or, Prop. 65, provides that “[n]o person in
`
`the course of doing business shall knowingly and
`intentionally expose any individual to a chemical known to
`the state to cause cancer . . . without first giving clear and
`reasonable warning to such individual, except as provided in
`Section 25249.10.” Cal. Health & Safety Code § 25249.6.
`
` California Chamber of Commerce (“CalChamber”) filed
`suit for declaratory and injunctive relief against the Attorney
`General of California, seeking to halt acrylamide litigation
`brought under Prop. 65. It sought to vindicate its members’
`First Amendment rights to not be compelled to place false
`and misleading acrylamide warnings on their food products.
`The Council for Education and Research on Toxics
`(“CERT”) intervened as a defendant and argued that, as a
`private enforcer of Prop. 65, an injunction would impose an
`
`
`* This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
`3
`
`CAL. CHAMBER OF COM. V. CERT
`
`
`
`unconstitutional prior restraint on its First Amendment
`rights. CERT is the sole appellant challenging the
`preliminary injunction on appeal.
`
`The panel held that intervenor CERT had standing
`
`because it suffered an invasion of a legally protected interest
`when the district court enjoined it from filing Prop. 65
`lawsuits as to acrylamide in food and beverage products.
`
` Applying Zauderer v. Office of Disciplinary Counsel,
`471 U.S. 626 (1985),
`the panel addressed whether
`CalChamber was likely to succeed on the merits of its
`compelled speech First Amendment claim. The panel held
`that given the robust disagreement by reputable scientific
`sources over whether acrylamide in food causes cancer in
`humans, the district court did not abuse its discretion in
`concluding that the warning was controversial. The district
`court similarly did not abuse its discretion in finding the
`warning was misleading. Finally, the record supported the
`district court’s finding that Prop. 65’s enforcement regime
`created a heavy litigation burden on manufacturers who use
`alternative warnings rather than the approved safe harbor
`warning set forth in California’s Health and Safety
`Regulations. Because California and CERT did not meet
`their burden to show the warning requirement was lawful
`under Zauderer, the district court did not abuse its discretion
`when it concluded that CalChamber was likely to succeed on
`the merits of its First Amendment claim.
`
`The panel rejected CERT’s argument that the district
`
`court’s injunction was a prior restraint that violated its First
`Amendment right to petition. The serious constitutional
`issue raised by CalChamber gave the district court sufficient
`reason to enjoin Prop. 65 acrylamide litigation until the case
`was finally decided on the merits. The panel held that a
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`4
`
`likely unconstitutional
`injunction against
`preliminary
`litigation
`is not an unconstitutional or otherwise
`impermissible prior restraint.
`
`The panel concluded that there was no abuse of
`
`discretion in the district court’s analysis of the remaining
`preliminary injunction factors. The district court correctly
`found that CalChambers had established irreparable harm,
`which is relatively easy to establish in a First Amendment
`case. The panel further found that the scope of the injunction
`was not impermissible; that the balance of hardships
`weighed in CalChamber’s favor; and that the injunction
`would be in the public interest.
`
`
`
`COUNSEL
`
`Raphael Metzger (argued) and Scott Brust, Metzger Law
`Group, A Professional Law Corporation, Long Beach,
`California, for Intervenor-Defendant-Appellant.
`
`Trenton H. Norris (argued), S. Zachary Fayne, and David M.
`Barnes, Arnold & Porter Kaye Scholer LLP, San Francisco,
`California, for Plaintiff-Appellee.
`
`Jeffrey B. Margulies and Andy Guo, Norton Rose Fulbright
`US LLP, Los Angeles, California, for Amici Curiae of
`Consumer Brands Association, American Bakers
`Association, American Beverage Association, California
`Grain and Feed Association, California League of Food
`Producers, California Grocers Association, California
`Retailers Association, California Seed Association, National
`Confectioners Association, Plant California Alliance, and
`SNAC International.
`
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`5
`
`
`
`Rob Bonta, Attorney General of California; Edward H.
`Ochoa, Senior Assistant Attorney General; Laura J.
`Zuckerman, Supervising Deputy Attorney General; Megan
`K. Hey and Rafael J. Hurtado, Deputy Attorneys General;
`Office of the California Attorney General, Los Angeles,
`California; for Amicus Curiae Rob Bonta.
`
`
`
`OPINION
`
`BENNETT, Circuit Judge:
`
`California Chamber of Commerce (“CalChamber”) filed
`suit for declaratory and injunctive relief against the Attorney
`General of California, seeking to halt acrylamide litigation
`brought under California’s Safe Drinking Water and Toxic
`Enforcement Act of 1986, better known as Proposition 65 or
`Prop. 65.1 CalChamber argued that Prop. 65’s warning
`requirement violates the First Amendment of the U.S.
`Constitution on its face and as applied to acrylamide in food
`products. The district court granted CalChamber’s motion
`for a preliminary injunction, prohibiting “the Attorney
`General and his officers, employees, or agents, and all those
`in privity or acting in concert with those entities or
`individuals, including private enforcers” from filing or
`prosecuting “new lawsuit[s] to enforce the Proposition 65
`
`1 In its First Amended complaint, CalChamber named only the
`Attorney General as a defendant and sought to “enjoin [the Attorney
`General] and those in privity with and acting in concert with [him] from
`enforcing in the future a requirement to provide a false, misleading, and
`highly controversial cancer warning for food and beverage products . . .
`that contain the chemical acrylamide.” CalChamber claimed that those
`in privity and acting in concert with the Attorney General included
`“private enforcers of Proposition 65 under Cal. Health & Safety Code
`§ 25249.7(d).”
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`6
`
`warning requirement for cancer as applied to acrylamide in
`food and beverage products.” Council for Education and
`Research on Toxics (“CERT”) intervened as a defendant2
`and is the sole appellant challenging the preliminary
`injunction.
` We have
`jurisdiction under 28 U.S.C.
`§ 1292(a)(1), and we affirm.3
`
`I. FACTS AND PROCEDURAL BACKGROUND
`
`Prop. 65 provides that “[n]o person in the course of doing
`business shall knowingly and intentionally expose any
`individual to a chemical known to the state to cause cancer
`. . . without first giving clear and reasonable warning to such
`individual, except as provided in Section 25249.10.” Cal.
`Health & Safety Code § 25249.6. One exception under
`Section 25249.10 applies to those who “can show that the
`exposure poses no significant risk assuming lifetime
`exposure at the level in question for substances known to the
`state to cause cancer.” Id. § 25249.10(c). This is known as
`the “No Significant Risk Level.” See Nat’l Ass’n of Wheat
`Growers v. Becerra, 468 F. Supp. 3d 1247, 1254 (E.D. Cal.
`2020).
`
`A chemical is “known to the state to cause cancer” if it
`meets one of three statutory criteria: (1) the state’s qualified
`experts believe “it has been clearly shown through
`scientifically valid testing according to generally accepted
`
`2 CERT moved to intervene nine days after the lawsuit was filed.
`Both CalChamber and the Attorney General filed statements of non-
`opposition.
`
`3 Noerr-Pennington immunity is at issue in our concurrently filed
`opinion in B&G Foods North America, Inc. v. Kim Embry, No. 20-
`16971. Though CERT raised Noerr-Pennington immunity below, it
`abandoned that argument on appeal.
`
`
`
`7
`
`CAL. CHAMBER OF COM. V. CERT
`
`
`
`principles to cause cancer”; (2) “a body considered to be
`authoritative by such experts has formally identified it as
`causing cancer”; or (3) “an agency of the state or federal
`government has formally required it to be labeled or
`identified as causing cancer.” Cal. Health & Safety Code
`§ 25249.8(b). The California Office of Environmental
`Health Hazard Assessment (“OEHHA”) “is the lead agency
`designated by the Governor to implement and enforce
`Proposition 65.” Cal. Chamber of Com. v. Brown, 126 Cal.
`Rptr. 3d 214, 219 n.5 (Ct. App. 2011). In its initially
`published list of chemicals known to cause cancer, OEHHA
`“listed only chemicals
`that had been
`identified as
`carcinogens . . . based on human epidemiological studies. It
`did not include chemicals identified as carcinogens . . . based
`on animal studies.” Id. at 219 (citation omitted). Today, a
`“chemical agent must be listed even if it is known to be
`carcinogenic . . . only in animals.” Am. Chemistry Council
`v. Off. of Envt’l Health Hazard Assessment, 270 Cal. Rptr.
`3d 379, 402 (Ct. App. 2020).
`
`OEHHA’s regulations provide that a cancer warning for
`foods is “clear and reasonable” if it states: “WARNING:
`Consuming
`this product can expose you
`to [name
`of chemical], which is known to the State of California to
`cause
`cancer.
` For more
`information
`go
`to
`www.P65Warnings.ca.gov/food.” See Cal. Code Regs. tit.
`27, § 25607.2(a)(1), (2). This is known as the “safe harbor”
`warning. A party that fails to provide such a warning or
`otherwise establish an exception may be enjoined, Cal.
`Health & Safety Code § 25249.7(a), and “is liable for a civil
`penalty not to exceed two thousand five hundred dollars
`($2,500) per day for each violation,” id. § 25249.7(b)(1).
`
`Prop. 65 enforcement actions “may be brought by the
`Attorney General in the name of the people of the State of
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`8
`
`California, by a district attorney,” by a city attorney or city
`prosecutor, or “by a person in the public interest.” Id.
`§ 25249.7(c), (d). Before suing, the person acting in the
`public interest must provide a sixty-day notice of the alleged
`violation to the Attorney General, other local prosecutors
`with
`jurisdiction, and
`the alleged violator.
`
`Id.
`§ 25249.7(d)(1). The private enforcer can only bring suit if
`“[n]either the Attorney General, a district attorney, a city
`attorney, nor a prosecutor has commenced and is diligently
`prosecuting an action against
`the violation.”
`
`Id.
`§ 25249.7(d)(2).
`
`OEHHA added acrylamide to the Prop. 65 list in 1990
`“because studies showed it produced cancer in laboratory
`rats and mice.”4 OEHHA, Acrylamide, https://oehha.ca.gov/
`proposition-65/general-info/acrylamide (last visited Mar. 3,
`2022). The EPA found that acrylamide was a “likely”
`human carcinogen, and the International Agency for
`Research on Cancer classified it as “probably carcinogenic
`to humans.” According to the FDA, acrylamide “is a
`chemical that can form in some foods during high-
`temperature cooking processes, such as frying, roasting, and
`baking” and was first detected in foods in 2002. But the
`National Cancer Institute stated that “a large number of
`epidemiologic studies . . . have found no consistent evidence
`that dietary acrylamide exposure is associated with the risk
`of any type of cancer.” The American Cancer Society stated
`that studies “suggest that dietary acrylamide isn’t likely to
`be related to risk for most common types of cancer.” And
`the FDA has stated that “warning labels based on the
`presence of acrylamide in food might be misleading.”
`
`4 Toxicological studies have shown that tumors are observed in
`rodents only when they are exposed to acrylamide at approximately 500
`times the average daily amount consumed by Americans.
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`
`
`Between 2015 and October 2020, private enforcers have sent
`almost 1,000 notices of alleged acrylamide violations to the
`Attorney General.
`
`9
`
`CalChamber is a nonprofit business association with
`over 13,000 members, many of whom sell or produce food
`products that contain acrylamide. It filed its complaint to
`vindicate its members’ First Amendment right to not be
`compelled to place false and misleading acrylamide
`warnings on their food products. CalChamber’s preliminary
`injunction motion sought to prohibit parties from “filing
`and/or prosecuting new lawsuits to enforce the Proposition
`65 warning requirement for cancer as applied to acrylamide
`in food and beverage products.” CalChamber submitted
`expert declarations stating that there is no consistent or
`reliable evidence that acrylamide increases the risk of any
`type of cancer in humans, that the toxicological studies
`related to experimental animals are not relevant to humans
`at real-world levels of exposure, and that California
`consumers understood Prop. 65’s safe harbor warning “to
`convey the message that eating [food with acrylamide]
`increases their risk of getting cancer.”
`
`the Attorney General submitted a
`In opposition,
`declaration from an expert who stated that evidence shows
`that acrylamide is a human carcinogen. Intervenor CERT
`also opposed the motion, arguing an injunction would
`impose an unconstitutional prior restraint on its First
`Amendment rights.5
`
`
`5 Nothing in any of CERT’s district court filings asserted or
`suggested that CERT was asserting the rights of any other private
`enforcers.
`
`
`
`10
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`The district court granted the preliminary injunction.
`Under the injunction:
`
`While this action is pending and until a
`further order of this court, no person may file
`or prosecute a new lawsuit to enforce the
`Proposition 65 warning requirement for
`cancer as applied to acrylamide in food and
`beverage products. This injunction applies to
`the requirement that any “person in the
`course of doing business” provide a “clear
`and reasonable warning” for cancer before
`“expos[ing] any individual to” acrylamide in
`food and beverage products under California
`Health & Safety Code § 25249.6. It applies
`to the Attorney General and his officers,
`employees, or agents, and all those in privity
`or acting in concert with those entities or
`individuals, including private enforcers under
`section 25249.7(d) of the California Health
`and Safety Code.
`
`This order does not alter any existing
`consent decrees, settlements, or other
`agreements related to Proposition 65 warning
`requirements.
`
`Cal. Chamber of Com. v. Becerra, 529 F. Supp. 3d 1099,
`1123 (E.D. Cal. 2021) (alteration in original). The district
`court found that CalChamber was likely to succeed on the
`merits because neither the State nor CERT had shown that
`the Prop. 65 cancer warning for acrylamide in food is
`“purely factual and uncontroversial.” The district court also
`rejected CERT’s prior restraint argument.
`
`
`
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`11
`
`CERT appealed the preliminary injunction order, but the
`Attorney General did not. A divided motions panel of this
`court6 granted in part CERT’s motion for an emergency stay
`of the preliminary injunction pending appeal. The majority
`found that “[e]ven if a court could enjoin lawsuits that
`infringe on a defendant’s established First Amendment right
`against compelled speech, no court has made a final
`determination that a Proposition 65 warning is, in fact,
`unconstitutional with respect to acrylamide exposure.” The
`motions panel also stated that the “breadth of the
`injunction”—prohibiting Prop. 65 lawsuits “with regard to
`acrylamide exposure by any private actor, including those
`who are not parties to the underlying action”—“exacerbates
`the concerns underlying the prior restraint doctrine.” The
`motions panel stayed the preliminary injunction only to the
`extent it barred private enforcers, including CERT, from
`filing or prosecuting Prop. 65 lawsuits. Another motions
`panel later denied CalChamber’s motion to dismiss CERT’s
`appeal for lack of standing.
`
`II. STANDARD OF REVIEW
`
`This court reviews “the district court’s decision to grant
`or deny a preliminary injunction for abuse of discretion. . . .
`The district court’s interpretation of the underlying legal
`principles, however, is subject to de novo review and a
`district court abuses its discretion when it makes an error of
`law.” Sw. Voter Registration Educ. Project v. Shelley, 344
`
`6 Dissenting, Judge Forrest stated that CERT did not contend that it
`intended to file any enforcement lawsuits, that CERT had filed no
`enforcement suits since CalChamber filed the litigation, and that CERT
`could still send demand letters. Judge Forrest believed CalChamber
`“raised serious questions regarding whether the warning required by
`Proposition 65 as [it] relates to acrylamide is permissible compelled
`commercial speech.”
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`12
`
`F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam) (citation
`omitted).
`
`“A district court abuses its discretion if it rests its
`decision ‘on an erroneous legal standard or on clearly
`erroneous factual findings.’” Am. Beverage Ass’n v. City &
`County of San Francisco, 916 F.3d 749, 754 (9th Cir. 2019)
`(en banc) (quoting United States v. Schiff, 379 F.3d 621, 625
`(9th Cir. 2004)). “A district court’s decision is based on an
`erroneous legal standard if: ‘(1) the court did not employ the
`appropriate legal standards that govern the issuance of a
`preliminary injunction; or (2) in applying the appropriate
`standards, the court misapprehended the law with respect to
`the underlying issues in the litigation.’” Negrete v. Allianz
`Life Ins. Co. of N. Am., 523 F.3d 1091, 1096 (9th Cir. 2008)
`(quoting Clear Channel Outdoor Inc. v. City of Los Angeles,
`340 F.3d 810, 813 (9th Cir. 2003), abrogated on other
`grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7
`(2008)).
`
`“In the context of a trial court’s factual findings, as
`applied to legal rules, to determine whether a district court
`has abused its discretion, the first step . . . is to determine de
`novo whether the trial court identified the correct legal rule
`to apply to the relief requested.” Enyart v. Nat’l Conf. of Bar
`Exam’rs, Inc., 630 F.3d 1153, 1159 (9th Cir. 2011) (cleaned
`up). “If the trial court identified the correct legal rule, the
`second step is to determine whether the trial court’s
`application of the correct legal standard was (1) illogical,
`(2) implausible, or (3) without support in inferences that may
`be drawn from the facts in the record.” Id. (cleaned up).
`
`“We review the scope of an injunction for abuse of
`discretion.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries
`Serv., 886 F.3d 803, 823 (9th Cir. 2018).
`
`
`
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`13
`
`III. DISCUSSION
`
`A. Standing
`
`We first address the jurisdictional challenge raised by
`CalChamber. Notwithstanding that CERT intervened, that
`CalChamber sought
`to enjoin CERT, and
`that
`the
`preliminary injunction obtained by CalChamber does enjoin
`CERT, CalChamber argues that CERT lacks standing to
`appeal. CalChamber claims that the injunction might not
`affect CERT because CERT “does not have any pending 60-
`day notices concerning acrylamide in food on which it could
`file suit.”7 CalChamber therefore contends that CERT “does
`not have Article III standing and its appeal cannot proceed.”
`CERT argues that because the district court enjoined “CERT
`and all other private enforcers from filing Proposition 65
`cases regarding acrylamide in food, CERT ha[s] standing to
`appeal.” We agree with CERT.
`
`“[T]o appeal a decision that the primary party does not
`challenge, an intervenor must independently demonstrate
`standing.” Va. House of Delegates v. Bethune-Hill, 139
`S. Ct. 1945, 1951 (2019). “Standing under Article III of the
`Constitution
`requires
`that an
`injury be concrete,
`particularized, and actual or imminent; fairly traceable to the
`challenged action; and redressable by a favorable ruling.”
`Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149
`(2010). The Supreme Court has “repeatedly reiterated that
`threatened injury must be certainly impending to constitute
`
`7 CalChamber also argues that it would be absurd for the Attorney
`General and other elected officials to not be able to enforce Prop. 65
`while private enforcers could. But this result would flow from the
`Attorney General’s decision not to appeal, not from any lack of injury to
`CERT. Moreover, it was CalChamber that sought to enjoin both the
`Attorney General and private enforcers like CERT.
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`14
`
`injury in fact, and that allegations of possible future injury
`are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S.
`398, 409 (2013) (cleaned up). As the Court held in
`TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021),
`“Congress may not authorize plaintiffs who have not
`suffered concrete harms to sue in federal court simply to
`enforce general compliance with regulatory law.” Id. at
`2207 n.3. The same principle applies to an intervenor
`seeking to appeal. Va. House of Delegates, 139 S. Ct. at
`1950–51.
`
`We first note that CERT recently filed a Prop. 65
`enforcement action against manufacturers and retailers of air
`fryers, alleging air fryers “generate extremely high levels of
`acrylamide to which Californians are exposed.” CERT does
`not contend that air fryers are “food and beverage products,”
`and stated at oral argument that its litigation against air fryer
`manufacturers would not have been barred by the injunction.
`CERT acknowledged that the defendants in that litigation,
`however, might contend that because air fryers create
`acrylamide in foods, the litigation would have been barred
`by the preliminary injunction, absent the stay. CalChamber
`stated at oral argument that the pending case faces the
`question whether air fryers are food and beverage products,
`and that the defendants in that case might argue that they are.
`
`CERT did not contend below that it specifically intended
`to file any Prop. 65 lawsuits or pre-litigation notices about
`acrylamide in food or beverage products. Nor did it make
`such a claim in opposition to the motion to dismiss the
`appeal for lack of standing. Nonetheless, we look to CERT’s
`long history of bringing suits against manufacturers of food
`and beverage products, CERT’s statement that it has
`“devote[d] [its] efforts to initiating new Proposition 65
`matters regarding acrylamide,” and CERT’s very recent
`
`
`
`15
`
`CAL. CHAMBER OF COM. V. CERT
`
`
`
`litigation against air fryers, as significant evidence of
`CERT’s concrete interest in bringing Prop. 65 litigation
`related to acrylamide in food and beverage products. We
`also note that CalChamber has not cited, nor have we found,
`any case in which an enjoined party was denied, on standing
`grounds, the right to appeal the injunction.
`
`We hold that CERT suffered “an invasion of a legally
`protected interest,” Lujan v. Defs. of Wildlife, 504 U.S. 555,
`560 (1992), when the district court enjoined it from filing
`Prop. 65 lawsuits as to acrylamide in food and beverage
`products. We find that CERT has suffered a concrete,
`particularized, and actual injury. Cf. Elrod v. Burns, 427
`U.S. 347, 373 (1976) (“The loss of First Amendment
`freedoms, for even minimal periods of time, unquestionably
`constitutes irreparable injury.”). The injury is directly
`traceable to the preliminary injunction and redressable by a
`reversal of that injunction. We thus conclude that CERT has
`standing, and we proceed to the merits of CalChamber’s and
`CERT’s arguments on appeal.
`
`B. Preliminary Injunction
`
`For a court to grant a preliminary injunction, a plaintiff
`“must establish [1] that he is likely to succeed on the merits,
`[2] that he is likely to suffer irreparable harm in the absence
`of preliminary relief, [3] that the balance of equities tips in
`his favor, and [4] that an injunction is in the public interest.”
`Winter, 555 U.S. at 20.
`
`1. Likelihood of Success on the Merits
`
`a. Compelled Speech
`
`The district court applied the three-factor test from
`Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`16
`
`to decide whether “the compelled warning
`(1985),
`(1) requires
`the disclosure of purely
`factual and
`uncontroversial information only, (2) is justified and not
`unduly burdensome, and (3) is reasonably related to a
`substantial government interest.” The district court’s first
`two factors combine the “three inquiries” that comprise
`“[t]he Zauderer test, as applied in [National Institute of
`Family & Life Advocates v. Becerra (“NIFLA”), 138 S. Ct.
`2361 (2018)]”: “whether the notice is (1) purely factual,
`(2) noncontroversial, and (3) not unjustified or unduly
`burdensome.” Am. Beverage, 916 F.3d at 756.8 In CTIA-
`The Wireless Ass’n v. City of Berkeley (“CTIA-II”), 928 F.3d
`832 (9th Cir. 2019), we joined our sister circuits in holding
`that “the Zauderer exception for compelled speech applies
`even in circumstances where the disclosure does not protect
`against deceptive speech.” Id. at 843. We held that “the
`governmental interest in furthering public health and safety
`is sufficient under Zauderer so long as it is substantial.” Id.
`at 844. The third factor considered by the district court here
`aligns with our holding in CTIA-II. The district court thus
`initially used the correct framework for determining whether
`Prop. 65’s warning requirement was a constitutionally
`permissible compelled disclosure.
`
`The district court then found that the Prop. 65 acrylamide
`warning did not pass constitutional muster. “Courts asked
`to issue preliminary injunctions based on First Amendment
`grounds face an inherent tension: the moving party bears the
`burden of showing likely success on the merits . . . and yet
`within that merits determination the government bears the
`burden of justifying its speech-restrictive law.” Thalheimer
`v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011),
`
`8 The inquiries or criteria need not be addressed in any particular
`order. Am. Beverage, 916 F.3d at 756.
`
`
`
`17
`
`CAL. CHAMBER OF COM. V. CERT
`
`
`
`overruled on other grounds by Bd. of Trs. of Glazing Health
`& Welfare Tr. v. Chambers, 941 F.3d 1195, 1199 (9th Cir.
`2019) (en banc). “Therefore, in the First Amendment
`context, the moving party bears the initial burden of making
`a colorable claim that its First Amendment rights have been
`infringed, or are threatened with infringement, at which
`point the burden shifts to the government to justify the
`restriction” on speech. Id. at 1116.
`
`CalChamber bore the initial burden to show a colorable
`claim. As the district court found, “[t]he parties agree[d]
`Proposition 65 compels commercial speech.” Thus, the
`court shifted its inquiry to assessing whether California
`could justify the compelled disclosure under Zauderer. The
`district court found that “[1] the State has not shown that the
`safe-harbor acrylamide warning is purely factual and
`uncontroversial, and [2] Proposition 65’s enforcement
`system can impose a heavy litigation burden on those who
`use alternative warnings.”9 The court found that “the
`warning implies incorrectly that acrylamide is an additive or
`ingredient,” and “is likely misleading.” The court also
`referenced the consumer survey submitted by CalChamber
`that shows how those “who read the safe harbor warning will
`probably believe that eating the food increases their personal
`risk of cancer.” The court acknowledged that some studies
`would “support such an inference,” but also noted “dozens
`of epidemiological studies have failed to tie human cancer to
`a diet of food containing acrylamide.” Thus, it found “the
`safe harbor warning is controversial because it elevates one
`
`
`9 As noted, the safe-harbor warning reads: “Consuming this product
`can expose you to [acrylamide], which is . . . known to the State of
`California
`to cause cancer.
` For more
`information go
`to
`www.P65Warnings.ca.gov/food.”
` Cal. Code Regs.
`tit. 27,
`§ 25607.2(a)(2).
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`18
`
`side of a legitimately unresolved scientific debate about
`whether eating foods and drinks containing acrylamide
`increases the risk of cancer.”
`
`The record supports the district court’s findings. First,
`the district court found that the safe harbor warning is
`controversial because of the scientific debate over whether
`acrylamide in food causes cancer in humans. In 2019, the
`American Cancer Society stated that “dietary acrylamide
`isn’t likely to be related to risk for most common types of
`cancer.” According to the National Cancer Institute, while
`“[s]tudies in rodent models have found that acrylamide
`exposure increases the risk for several types of cancer[,] . . .
`a large number of epidemiologic studies . . . in humans have
`found no consistent evidence that dietary acrylamide
`exposure is associated with the risk of any type of cancer.”
`One epidemiologist who reviewed 56 studies concluded that
`“there is no consistent or reliable evidence to support a
`finding that dietary exposure to acrylamide increases the risk
`of any type of cancer in humans.” In her publication, the
`researcher noted that the “epidemiologic studies . . . have
`failed to detect an increased risk of cancer, and they raise
`serious doubt regarding the validity of extrapolating from
`rodent studies suggestive of multiorgan effects to humans.”
`These opinions weigh against the conclusions of three
`organizations: the International Agency for Research on
`Cancer classifies acrylamide as “probably carcinogenic to
`humans,” the U.S. National Toxicology Program classifies
`acrylamide as “reasonably anticipated to be a human
`carcinogen,” and the EPA classifies acrylamide as “likely to
`be carcinogenic to humans.” Given this robust disagreement
`
`
`
`CAL. CHAMBER OF COM. V. CERT
`
`
`
`by reputable scientific sources, the court did not abuse its
`discretion in concluding that the warning is controversial.10
`
`19
`
`The court similarly did not abuse its discretion in finding
`the warning is misleading. Scientific debate aside, Prop.
`65’s meaning of the word “known” is not conveyed in the
`warning.11 The district court stated: “Statements are not
`necessarily factual and uncontroversial just because they are
`technically true.” See CTIA-II, 928 F.3d at 847 (“[A]
`statement may be literally true but nonetheless misleading
`and, in that sense, untrue.”). Under Prop. 65, a “known”
`carcinogen carries a complex legal meaning that consumers
`would not glean from the warning without context.12 Thus,
`use of the word “known” is misleading—as the FDA
`acknowledged the warning might be. Even the State of
`California has stipulated that it “does not know that
`acrylamide causes cancer in humans, and is not required to
`make any finding to that effect in order to list the chemical
`under Proposition 65.” As the consumer survey showed,
`
`10 We do not try to offer a general definition for “controversial” in
`the Zauderer context. However controversial is defined, the acrylamide
`Prop. 65 warning easily meets the definition because of the scientific
`debate.
`
`11 As noted above, the word “known” has a specialized meaning
`under Prop. 65, see Cal. Health & Safety Code § 25249.8(b), and
`OEH
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