First Amendment Bars California from Requiring a Proposition 65 Glyphosate Warning

By Josh Bloom

In a federal case of major significance in the Eastern District of California, the court on June 22 ruled that the First Amendment bars California from requiring that a Proposition 65 warning be applied to products containing glyphosate. Glyphosate is the primary active ingredient in the Monsanto product Roundup. The plaintiffs suing the state were a broad array of growers or trade groups that sell, or represent members that sell, glyphosate-based herbicides, or use those herbicides in cultivation of crops that are sold in California.

In this case, National Association of Wheat Growers, et al. v. Becerra, No. 2:17-cv-2401 WBS EFB (E.D. Cal., June 22, 2020), Judge Shubb granted the plaintiffs a permanent injunction, and enjoined California from enforcing the Proposition 65 warning requirement with regard to exposures from glyphosate.

Glyphosate was listed by the state in 2017 under Proposition 65 as a chemical known to the State of California to cause cancer. The basis of that listing was a classification by the International Agency for Research on Cancer (IARC) that glyphosate was “probably carcinogenic” to humans, which in turn was based on sufficient evidence that it caused cancer in experimental animals and limited evidence that it caused cancer in humans. However, other agencies, such as the U.S. Environmental Protection Agency and the World Health Organization, among others, have not concluded that glyphosate causes cancer in humans, and in some cases, concluded that glyphosate does not cause cancer in humans.

After disposing of the state’s ripeness argument, the court analyzed the primary U.S. Supreme Court rulings with regard to regulation of commercial speech. The court first considered the Supreme Court’s seminal ruling in Central Hudson Gas & Electric Corp., 447 U.S. 557 (1980), which held that the government may restrict commercial speech that is neither misleading nor connected to fraudulent activity as long as the government’s interest in regulating the speech is substantial. An intermediate standard of review was applied to such restriction, and the restriction may be no more extensive than is necessary to serve the government’s interest.

A lower level of scrutiny is applied where the government seeks to compel speech. In addressing that issue in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, (1985), the Supreme Court ruled that the government may compel a commercial speaker to disclose “purely factual and uncontroversial information,” as long as the disclosure requirements are reasonably related to a substantial government interest and are neither unjustified nor unreasonably burdensome. Also relevant to the National Association of Wheat Growers court’s consideration was the Supreme Court’s decision in National Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361 (2018) (NIFLA). In NIFLA, the Court applied the lower Zauderer standard to California requiring that certain disclosures be made a pro-choice pregnancy centers, and found that even under that more lenient standard the state had not shown the requirement was not unjustified or unduly burdensome. To another of the disclosure requirements, the Court held that the Zauderer standard did not apply because disclosure of information concerning state-sponsored services, including abortion, was anything but uncontroversial.

In the glyphosate case, Judge Shubb ruled that application of the lower Zauderer standard was appropriate only if the Proposition 65 warning requirement for glyphosate was “purely factual and uncontroversial.” If not, the Central Hudson intermediate scrutiny standard would apply. In assessing the warning requirement, the court found that requiring the statement that glyphosate is “known to the State of California to cause cancer” is misleading because all regulators save IARC did not conclude that the chemical causes cancer in humans, and some regulators or entities affirmatively found that it does not cause cancer. The court was also not convinced by the State’s arguments that alternative warning language that might otherwise comply with Proposition 65 avoided the misleading nature of the warning.

Having concluded that the Zauderer standard does not apply, the court then applied the intermediate standard under Central Hudson. Under the application, the court concluded that the Proposition 65 warning requirement as applied to glyphosate was not shown by the state to directly advance an asserted government interest, nor that it was not more extensive than necessary to achieve that interest. Although the court agreed that California has a substantial interest in informing its citizens about exposure to carcinogenic chemicals, it determined that misleading statements about glyphosate’s carcinogenicity do not advance that interest. The court further noted that California had other means of educating its citizens without burdening business, such as advertising campaigns or posting information online.

In concert with the recent NIFLA decision, the glyphosate ruling makes clear the burden on states that seek to require disclosure of information on matters that are not wholly uncontroversial. If the state seeks to appeal the ruling in the Ninth Circuit, there is a reasonable likelihood that the Supreme Court may once again be called on to further define the parameters of when a state can compel commercial speech.

Joshua A. Bloom is a partner at Environmental General Counsel LLP.


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