On June 22, 2020, U.S. District Judge William B. Shubb (Eastern District of California) granted summary judgment in favor of Plaintiffs Monsanto Company and a number of farming groups and associations; denied a competing motion for summary judgment filed by California Attorney General Xavier Becerra; and entered a permanent injunction barring enforcement against Plaintiffs of the Proposition 65 (Prop. 65) cancer warning requirements for glyphosate. See National Assoc. of Wheat Growers et al. v. Becerra, Case No. 2:17-civ-02401, 2020 U.S. Dist. LEXIS 108926 (E.D. Cal. June 22, 2020).

On Nov. 14, 2017, Plaintiffs sued Lauren Zeise, director of California’s Office of Environmental Health Hazard Assessment (OEHHA) (who was later dismissed from the case and replaced with the Attorney General), alleging in part that OEHHA’s listing of glyphosate under Prop. 65 as a carcinogen, and the resulting warning requirements, violate Plaintiffs’ First Amendment rights by compelling them to make “false, misleading, and highly controversial statements.” As previously reported in this blog, and reiterated in the Memorandum and Order at issue, the Court initially entered a preliminary injunction precluding enforcement of the warning rules (but declined to prohibit the placement of glyphosate on Prop. 65’s list of carcinogens, as it constituted permissible governmental speech). See Wheat Growers, 2020 U.S. Dist. LEXIS 108926, at ** 8, 26. Without reaching issues such as whether glyphosate is indeed carcinogenic, or whether Prop. 65 is good policy, the Court found that the safe harbor warning language stating that glyphosate is “known to the state of California to cause cancer,” could mislead the average consumer, as “[i]t is inherently misleading for a warning to state that a chemical is known to the state of California to cause cancer based on the finding of one organization [International Agency for Research on Cancer (IARC)] . . . when apparently all other regulatory and governmental bodies have found the opposite.” See id. at **9-10.

After affirming its prior decision that the First Amendment challenge was ripe, the Court determined that the compelled Prop. 65 warning did not constitute “purely factual and uncontroversial information”; thus, the Court refrained from applying the corresponding lower standard of scrutiny under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). See id. at **19-24. Instead, having determined that Zauderer was inapplicable, the Court applied intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), and determined that the government failed to meet its burden of showing that Prop. 65’s warning requirement for glyphosate directly advances the asserted government interest, and that the compelled speech is not more extensive than necessary to achieve that interest. See id. at **34-36.

We will continue to monitor this case, throughout the potential period of appeal to the Ninth Circuit Court of Appeals. This ruling (if upheld or not appealed) potentially opens the door to challenge other Prop. 65 warning requirements where evidence of carcinogenicity or reproductive toxicity is arguably inadequate or controversial.