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From Products Liability Law Daily, February 28, 2018

Proposition 65 warning for common herbicide chemical enjoined as First Amendment infringement

By Leah S. Poniatowski, J.D.

A warning requirement pursuant to California’s Proposition 65 regulations for glyphosate, a chemical in a widely-used herbicide, was enjoined because labelling the chemical a carcinogen was against the weight of the evidence and, thus, would compel vendors and others to make misleading statements in violation of their First Amendment rights, a federal district court in California ruled. However, inclusion of the chemical on a list of chemicals known to the state of California to cause cancer was a function of government speech and, therefore, was not a First Amendment violation (National Assoc. of Wheat Growers v. Zeise, February 26, 2018, Shubb, W.).

Several agricultural and related associations (collectively, the associations) filed a preliminary injunction motion against California officials seeking to prevent enforcement of the listing and labeling requirements under California’s Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.5- 25249.14 (Proposition 65). Under this set of state regulations, the governor must publish a list of chemicals that are known to the state to cause cancer. In order to determine what chemicals are carcinogenic, the state often relies on determinations made by the United States Environmental Protection Agency (EPA), the United States Food and Drug Administration (FDA), and the International Agency for Research on Cancer (IARC). Additionally, after a chemical has been put on the list, the regulations mandate that a warning must be included within 12 months of the chemical becoming listed by anyone in the course of doing business who would knowingly and intentionally expose others to the chemical. The state may impose up to a $2,500 per-day penalty for failing to provide an adequate warning.

In July 2017, glyphosate was added to the list of cancer-causing chemicals. Glyphosate is an active ingredient in a commonly-used herbicide, which impacts the associations because they or their members sell herbicides with glyphosate, or use glyphosate on their crops which are incorporated or processed into food products sold in California. Although the IARC had classified glyphosate as a chemical that was "probably carcinogenic" to humans in 2015, the EPA and other World Health Organization agencies have determined that there is no evidence that the chemical causes cancer.

The associations challenged California’s listing of glyphosate as a chemical known to the state to cause cancer and argued that the listing and warning requirements violate the First Amendment because they would be compelled to make "false, misleading, and highly controversial statements about their products."

Ripeness. As an initial matter, the court concluded that the First Amendment challenge was ripe because the associations faced a realistic risk of injury. Although there was a possibility of the state enacting a "safe harbor" level of the chemical that would not mandate a warning, the associations proffered evidence that private plaintiffs have sought enforcement actions despite compliance with the safe harbor levels. Additionally, the cost of testing to determine if the product is within or outside the safe harbor level has been identified as a cognizable injury, as well as the risk of defending or facing an enforcement action. Finally, any warning that would meet the demands of the state regulators would be inconsistent with their First Amendment rights.

Listing glyphosate. With respect to the claim that listing glyphosate would violate the associations’ First Amendment rights, did not establish a likelihood to succeed on the merits because the listing involved government—not private—speech. Case precedent held that the First Amendment does not regulate government speech. The fact that listing glyphosate triggers the warning requirement does not change the listing into government-compelled speech, the court explained. The associations also failed to show a likelihood of irreparable harm from the listing because the harm they would encounter would arise from the warning requirement. Accordingly, the associations’ preliminary injunction based on the listing of glyphosate was denied.

Warning requirement. However, the court found that the warning requirement would violate the associations’ First Amendment rights. Because the warning compels commercial speech, the court explained that the state officials had the burden to show that the disclosure agreement was purely factual and uncontroversial, not unduly burdensome, and reasonably related to a substantial government interest. The state argued that the IARC classification of glyphosate supported its position that it was "known" to California to cause cancer and, thus, the warning language is factually accurate. The court disagreed, explaining that a reasonable consumer would be misled by the warning because the consumer would conclude that the chemical is a carcinogen despite the fact that the EPA and other entities repeatedly have concluded that there was no evidence that glyphosate causes cancer. Thus, the "factual and uncontroversial" burden was not met and the associations established the likelihood of success on the merits of the warning requirement as a violation of the First Amendment rights claim.

Additionally, the associations showed they would suffer irreparable harm as the threshold for demonstrating irreparable harm is low for First Amendment claims. Finally, the balance of the equities and public interest favored the associations because the state’s objective of accurately informing of health risks would not be achieved by requiring misleading or false labels, especially if that requirement infringed on a party’s First Amendment rights. Therefore, the preliminary injunction was granted in part to enjoin the warning requirement under the applicable state regulation.

The case is No. 2:17-2401 WBS EFB.

Attorneys: Catherine L. Hanaway (Husch Blackwell LLP) for National Association of Wheat Growers, National Corn Growers Association and United States Durum Growers Association. Ann Marguerite Grottveit (Kahn, Soares & Conway, LLP) for Western Plant Health Association. Laura Zuckerman, State of California Department of Justice, for Lauren Zeise.

Companies: National Association of Wheat Growers; National Corn Growers Association; United States Durum Growers Association; Western Plant Health Association

MainStory: TopStory WarningsNews ChemicalNews CaliforniaNews

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