NAWG, ET AL V. ROB BONTA, ET AL, No. 20-16758 (9th Cir. 2023)
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In 2015, the International Agency for Research on Cancer (IARC) identified glyphosate as “probably carcinogenic” to humans. That conclusion is not shared by a consensus of the scientific community. As a result, Certain businesses whose products expose consumers to glyphosate were required to provide a Prop 65 warning that glyphosate is a carcinogen. Plaintiffs, a coalition of agricultural producers and business entities, asserted that Prop 65’s warning violated their First Amendment rights to be free from compelled speech. The district court granted summary judgment in favor of Plaintiffs.
The Ninth Circuit affirmed. The panel concluded that the government’s proposed Prop 65 warnings as applied to glyphosate were not purely factual and uncontroversial and thus were subject to intermediate scrutiny. The proposed warning that “glyphosate is known to cause cancer” was not purely factual because the word “known” carries a complex legal meaning that consumers would not glean from the warning without context, and thus the word was misleading. As to the most recent warning proposed by the California Office of Environmental Health Hazard Assessment (OEHHA), the panel held that the warning still conveys the overall message that glyphosate is unsafe, which is, at best, disputed. The panel held that because none of the proposed glyphosate Prop 65 warnings were narrowly drawn to advancing California’s interest in protecting consumers from carcinogens, and California had less burdensome ways to convey its message than to compel Plaintiffs to convey it for them, the Prop 65 warning requirement as applied to glyphosate was unconstitutional.
Court Description: First Amendment/Commercial Speech. The panel affirmed the district court’s grant of summary judgment in favor of plaintiffs and its entry of a permanent injunction enjoining the California Attorney General from enforcing Proposition 65’s carcinogen warning requirement for the herbicide glyphosate, best known as the active ingredient in the herbicide Roundup.
In 2015, the International Agency for Research on Cancer (IARC) identified glyphosate as “probably carcinogenic” to humans. That conclusion is not shared by a consensus of the scientific community. As a result of the IARC identification, certain businesses whose products expose consumers to glyphosate were required to provide a Prop 65 warning that glyphosate is a carcinogen. Plaintiffs, a coalition of agricultural producers and business entities, asserted that Prop 65’s warning violated their First Amendment rights to be free from compelled speech.
The government may only compel commercial speech if it can demonstrate that in so doing it meets the requirements of intermediate scrutiny. However, an exception applies to compelled commercial speech that is “purely factual and uncontroversial.” In that scenario, the government need only demonstrate the compelled speech survives a lesser form of scrutiny akin to a rational basis test. The panel concluded that the government’s proposed Prop 65 warnings as applied to glyphosate were not purely factual and uncontroversial, and thus were subject to intermediate scrutiny. The proposed warning that “glyphosate is known to cause cancer” was not purely factual because the word “known” carries a complex legal meaning that consumers would not glean from the warning without context and thus the word was misleading. Moreover, saying that something is carcinogenic or has serious deleterious health effects— without a strong scientific consensus that it does—is controversial. As to the most recent warning proposed by the California Office of Environmental Health Hazard Assessment (OEHHA), the panel held that the warning still conveys the overall message that glyphosate is unsafe, which is, at best disputed. The warning therefore requires plaintiffs to convey a controversial, fiercely contested message that they fundamentally disagree with.
Applying intermediate scrutiny, the panel held that because none of the proposed glyphosate Prop 65 warnings were narrowly drawn to advancing California’s interest in protecting consumers from carcinogens, and California had less burdensome ways to convey its message than to compel plaintiffs to convey it for them, the Prop 65 warning requirement as applied to glyphosate was unconstitutional.
Dissenting, Judge Schroeder wrote that the panel should, at the very least, remand the new OEHHA warning to the district court to consider its sufficiency in the first instance. Judge Schroeder stated that: (1) there is no Supreme Court guidance on compelled commercial speech in the sphere of product liability and consumer protection and the majority’s reliance on an opinion addressing compelled speech in the context of access to abortion was misplaced; (2) the majority refused to look at the actual content of the recent OEHHA warning to determine whether it consisted of factually accurate information and instead assessed the warning’s overall message; and (3) there was a strong reason for the district court to reconsider the scientific record. In Judge Schroeder’s view, the new OEHHA warning fulfills the requirements of Prop 65, the validity of which was not questioned.
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