Cal. Chamber of Commerce v. Council for Educ. & Research on Toxics
| Decision Date | 17 March 2022 |
| Docket Number | 21-15745 |
| Parties | California Chamber of Commerce, Plaintiff-Appellee, v. Council for Education and Research on Toxics, a California public benefit corporation, Intervenor-Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted January 12, 2022 San Francisco, California
Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding D.C. No. 2:19-cv-02019-KJM-JDP
Raphael Metzger (argued) and Scott Brust, Metzger Law Group A Professional Law Corporation, Long Beach, California, for Intervenor-Defendant-Appellant.
Trenton H. Norris (argued), S. Zachary Fayne, and David M Barnes, Arnold & Porter Kaye Scholer LLP, San Francisco, California, for Plaintiff-Appellee.
Jeffrey B. Margulies and Andy Guo, Norton Rose Fulbright U.S. LLP, Los Angeles, California, for Amici Curiae of Consumer Brands Association, American Bakers Association, American Beverage Association, California Grain and Feed Association, California League of Food Producers, California Grocers Association, California Retailers Association, California Seed Association, National Confectioners Association, Plant California Alliance, and SNAC International.
Rob Bonta, Attorney General of California; Edward H. Ochoa, Senior Assistant Attorney General; Laura J. Zuckerman, Supervising Deputy Attorney General; Megan K. Hey and Rafael J. Hurtado, Deputy Attorneys General; Office of the California Attorney General, Los Angeles, California; for Amicus Curiae Rob Bonta.
Before: Ronald M. Gould, Mark J. Bennett, and Ryan D. Nelson, Circuit Judges.
In an action brought pursuant to 42 U.S.C. § 1983, the panel affirmed the district court's order granting California Chamber of Commerce's motion for a preliminary injunction that prohibited the Attorney General and his officers, employees, or agents, and all those in privity or acting in concert with those entities or individuals, including private enforcers from filing or prosecuting new lawsuits to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products.
Proposition 65 or, Prop. 65, provides that "[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer . . . without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10." Cal. Health & Safety Code § 25249.6.
California Chamber of Commerce ("CalChamber") filed suit for declaratory and injunctive relief against the Attorney General of California, seeking to halt acrylamide litigation brought under Prop. 65. It sought to vindicate its members' First Amendment rights to not be compelled to place false and misleading acrylamide warnings on their food products. The Council for Education and Research on Toxics ("CERT") intervened as a defendant and argued that, as a private enforcer of Prop. 65, an injunction would impose an unconstitutional prior restraint on its First Amendment rights. CERT is the sole appellant challenging the preliminary injunction on appeal.
The panel held that intervenor CERT had standing because it suffered an invasion of a legally protected interest when the district court enjoined it from filing Prop. 65 lawsuits as to acrylamide in food and beverage products.
Applying Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the panel addressed whether CalChamber was likely to succeed on the merits of its compelled speech First Amendment claim. The panel held that given the robust disagreement by reputable scientific sources over whether acrylamide in food causes cancer in humans, the district court did not abuse its discretion in concluding that the warning was controversial. The district court similarly did not abuse its discretion in finding the warning was misleading. Finally, the record supported the district court's finding that Prop. 65's enforcement regime created a heavy litigation burden on manufacturers who use alternative warnings rather than the approved safe harbor warning set forth in California's Health and Safety Regulations. Because California and CERT did not meet their burden to show the warning requirement was lawful under Zauderer, the district court did not abuse its discretion when it concluded that CalChamber was likely to succeed on the merits of its First Amendment claim.
The panel rejected CERT's argument that the district court's injunction was a prior restraint that violated its First Amendment right to petition. The serious constitutional issue raised by CalChamber gave the district court sufficient reason to enjoin Prop. 65 acrylamide litigation until the case was finally decided on the merits. The panel held that a preliminary injunction against likely unconstitutional litigation is not an unconstitutional or otherwise impermissible prior restraint.
The panel concluded that there was no abuse of discretion in the district court's analysis of the remaining preliminary injunction factors. The district court correctly found that CalChambers had established irreparable harm, which is relatively easy to establish in a First Amendment case. The panel further found that the scope of the injunction was not impermissible; that the balance of hardships weighed in CalChamber's favor; and that the injunction would be in the public interest.
California Chamber of Commerce ("CalChamber") filed suit for declaratory and injunctive relief against the Attorney General of California, seeking to halt acrylamide litigation brought under California's Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65 or Prop. 65.[1] CalChamber argued that Prop. 65's warning requirement violates the First Amendment of the U.S. Constitution on its face and as applied to acrylamide in food products. The district court granted CalChamber's motion for a preliminary injunction, prohibiting "the Attorney General and his officers, employees, or agents, and all those in privity or acting in concert with those entities or individuals, including private enforcers" from filing or prosecuting "new lawsuit[s] to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products." Council for Education and Research on Toxics ("CERT") intervened as a defendant[2]and is the sole appellant challenging the preliminary injunction. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.[3]
Prop. 65 provides that "[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer . . . without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10." Cal. Health & Safety Code § 25249.6. One exception under Section 25249.10 applies to those who "can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer." Id. § 25249.10(c). This is known as the "No Significant Risk Level." See Nat'l Ass'n of Wheat Growers v. Becerra, 468 F.Supp.3d 1247, 1254 (E.D. Cal. 2020).
A chemical is "known to the state to cause cancer" if it meets one of three statutory criteria: (1) the state's qualified experts believe "it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer"; (2) "a body considered to be authoritative by such experts has formally identified it as causing cancer"; or (3) "an agency of the state or federal government has formally required it to be labeled or identified as causing cancer." Cal. Health & Safety Code § 25249.8(b). The California Office of Environmental Health Hazard Assessment ("OEHHA") "is the lead agency designated by the Governor to implement and enforce Proposition 65." Cal. Chamber of Com. v. Brown, 126 Cal.Rptr.3d 214, 219 n.5 (Ct. App. 2011). In its initially published list of chemicals known to cause cancer, OEHHA Id. at 219 (citation omitted). Today, a "chemical agent must be listed even if it is known to be carcinogenic . . . only in animals." Am. Chemistry Council v. Off. of Envt'l Health Hazard Assessment, 270 Cal.Rptr.3d 379, 402 (Ct. App. 2020).
OEHHA's regulations provide that a cancer warning for foods is "clear and reasonable" if it states: See Cal. Code Regs. tit. 27, § 25607.2(a)(1), (2). This is known as the "safe harbor" warning. A party that fails to provide such a warning or otherwise establish an exception may be enjoined, Cal. Health & Safety Code § 25249.7(a), and "is liable for a civil penalty not to exceed two thousand five hundred dollars ($2, 500) per day for each violation," id. § 25249.7(b)(1).
Prop 65 enforcement actions "may be brought by the Attorney General in the name of the people of the State of California, by a district attorney," by a city attorney or city prosecutor, or "by a person in the public interest." Id. § 25249.7(c), (d). Before suing, the person acting in the public interest must provide a sixty-day notice of the alleged violation to the Attorney General, other local prosecutors with jurisdiction, and the alleged violator. Id. § 25249.7(d)(...
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