California’s Proposition 65 has become a poster child for ineffective and counterproductive over-warning. You know what we are talking about. Prop 65 is the voter-enacted law that requires businesses to warn Californians about significant exposures to chemicals that allegedly cause cancer or birth defects. See Cal. H&S Code § 25249.5 et seq. A decent idea in concept, but California is now blanketed with boilerplate warnings of chemicals “known” to cause cancer, to which literally no one pays any attention. No one. We saw multiple such warnings while running errands just the other day, and the only people they are conceivable helping are attorneys who file lawsuits to recover generous statutory penalties and attorneys’ fees.
The Ninth Circuit has now identified another problem with Prop 65: The required warnings are government-compelled speech, which the First Amendment protects against. In National Association of Wheat Grower v. Bonta, No. 20-16758, 2023 WL 7314307 (9th Cir. Nov. 7, 2023) (to be published in F.4th), a group of agricultural producers sued to enjoin California from requiring Prop 65 warnings in connection with glyphosate, the active ingredient in Roundup. There were multiple versions of the warning that the state was trying to impose, but all would have compelled the plaintiffs to post statements that glyphosate was known to cause cancer or was “listed” or “classified” as causing cancer.
The Ninth Circuit held that this violated their First Amendment right to be free from compelled speech. The core issue is that there is no scientific consensus that glyphosate is a carcinogen. The state relied on an International Agency for Research on Cancer (“IARC”) monograph classifying glyphosate as “probably carcinogenic to humans.” Id. at *5. But in this regard, IARC stands alone. As the Ninth Circuit observed, “While IARC has concluded that glyphosate poses some carcinogenic hazard, federal regulators, California regulators, and several international regulators have all concluded that glyphosate does not pose a carcinogenic hazard.” Id. at *4 (emphasis in original). Thus, not only is there no scientific consensus, the evidence overwhelming shows that glyphosate does not pose a cancer risk in humans. Even the IARC’s lonesome opinion is that glyphosate poses some “hazard,” which is theoretical and does not indicate a likelihood of cancer at real-world levels of exposure.
Why does this matter? It matters because compelled commercial speech is subject to intermediate scrutiny under the First Amendment, which requires the government to “directly advance” a “substantial” governmental interest, and the means chosen must not be “more extensive than necessary.” Id. at *10 (citing Central Hudson). There is, however, an exception for compelled commercial speech that is “purely factual and uncontroversial.” Id. (citing Zauderer).
Despite trying mightily, the state could not force its required warnings into the exception because none of the multiple proposed warnings was “purely factual and uncontroversial.” The Prop 65 warning was not “purely factual” because the term “known carcinogen” carries a complex meaning, with considerable ambiguity on what an ordinary consumer would understand it to say. Moreover, the warning was anything but “uncontroversial.” It is obviously controversial to inform consumers that something is carcinogenic without a strong scientific consensus that it is. On another level, it is likewise controversial to force these plaintiffs to convey a message fundamentally at odds with their businesses. Id. at *12-*13.
Intermediate scrutiny therefore applied, and the state’s proposed warnings failed. California clearly has a substantial interest in protecting public health. However, “compelling sellers to warn consumers of a potential ‘risk’ never confirmed by any regulatory body—or of a hazard not ‘known’ to more than a small subset of the scientific community—does not directly advance that interest.” Id. at *16. The means were also not narrowly tailored, since the state had “other means to promote its (minority) view that glyphosate puts humans at risk of cancer ‘without burdening [Plaintiffs] with unwanted speech.’” Id. The state could, for example, post information on its own website.
Given the laundry list of chemicals on California’s Prop 65 list, we would not be surprised to see additional First Amendment challenges to Prop 65 warnings. We also would not be surprised to see California’s AG continue to resist.