Nat'l Ass'n of Wheat Growers v. Becerra

• Citation: 468 F.Supp.3d 1247
• Decision Date: 22 June 2020
• Docket Number: No. 2:17-cv-2401 WBS EFB,2:17-cv-2401 WBS EFB
• Court: U.S. District Court — Eastern District of California
• Parties: NATIONAL ASSOCIATION OF WHEAT GROWERS; National Corn Growers Association; United States Durum Growers Association ; Western Plant Health Association; Iowa Soybean Association; South Dakota Agri-Business Association ; North Dakota Grain Growers Association; Missouri Chamber of Commerce and Industry; Monsanto Company; Associated Industries of Missouri; Agribusiness Association of Iowa; CropLife America; and Agricultural Retailers Association, Plaintiffs, v. Xavier BECERRA, in his official capacity as Attorney General of the State of California, Defendant.

468 F.Supp.3d 1247

NATIONAL ASSOCIATION OF WHEAT GROWERS; National Corn Growers Association; United States Durum Growers Association ; Western Plant Health Association; Iowa Soybean Association; South Dakota Agri-Business Association ; North Dakota Grain Growers Association; Missouri Chamber of Commerce and Industry; Monsanto Company; Associated Industries of Missouri; Agribusiness Association of Iowa; CropLife America; and Agricultural Retailers Association, Plaintiffs,

v.Xavier BECERRA, in his official capacity as Attorney General of the State of California, Defendant.

No. 2:17-cv-2401 WBS EFB

United States District Court, E.D. California.

Signed June 22, 2020

Catherine L. Hanaway, PHV, Pro Hac Vice, Matthew P. Diehr, PHV, Pro Hac Vice, Matthew T. Schelp, PHV, Pro Hac Vice, Natalie R. Holden, PHV, Pro Hac Vice, Husch Blackwell LLP, St. Louis, MO, Christopher Claiborne Miles, Husch Blackwell LLP, Kansas City, MO, Travis Lillie, Missouri Attorney General, Springfield, MO, for Plaintiffs National Association of Wheat Growers, National Corn Growers Association, United States Durum Growers Association, Missouri Farm Bureau, Iowa Soybean Association, South Dakota Agri-Business Association, Missouri Chamber of Commerce and Industry, Associated Industries of Missouri, Agribusiness Association of Iowa.

Ann Marguerite Grottveit, Kahn, Soares & Conway, LLP, Sacramento, CA, Travis Lillie, Missouri Attorney General, Springfield, MO, for Plaintiff Western Plant Health Association.

Catherine L. Hanaway, PHV, Pro Hac Vice, Matthew P. Diehr, PHV, Pro Hac Vice, Matthew T. Schelp, PHV, Pro Hac Vice, Natalie R. Holden, PHV, Pro Hac Vice, Husch Blackwell LLP, St. Louis, MO, Christopher Claiborne Miles, Husch Blackwell LLP, Kansas City, MO, Joshua M. Divine, PHV, Pro Hac Vice, Missouri Attorney Generals Office, Jefferson City, MO, Travis Lillie, Missouri Attorney General, Springfield, MO, for Plaintiff North Dakota Grain Growers Association.

Andrew Prins, PHV, Pro Hac Vice, Nicholas L. Schlossman, PHV, Pro Hac Vice, Richard P. Bress, PHV, Pro Hac Vice, Ryan S. Baasch, PHV, Pro Hac Vice, Philip J. Perry, Latham & Watkins LLP, Washington, DC, Catherine L. Hanaway, PHV, Pro Hac Vice, Matthew P. Diehr, PHV, Pro Hac Vice, Matthew T. Schelp, PHV, Pro Hac Vice, Natalie R. Holden, PHV, Pro Hac Vice, Husch Blackwell LLP, St. Louis, MO, Christopher Claiborne Miles, Husch Blackwell LLP, Kansas City, MO, Travis Lillie, Missouri Attorney General, Springfield, MO, Trenton H. Norris, Arnold & Porter Kaye Scholer LLP, San Francisco, CA, for Plaintiff Monsanto Company.

Christopher Claiborne Miles, Husch Blackwell LLP, Kansas City, MO, Matthew P. Diehr, PHV, Pro Hac Vice, Husch Blackwell LLP, St. Louis, MO, Nicholas L. Schlossman, PHV, Pro Hac Vice, Philip J. Perry, Latham & Watkins LLP, Washington, DC, Travis Lillie, Missouri Attorney General, Springfield, MO, for Plaintiff CropLife America.

Catherine L. Hanaway, PHV, Pro Hac Vice, Matthew P. Diehr, PHV, Pro Hac Vice, Matthew T. Schelp, PHV, Pro Hac Vice, Natalie R. Holden, PHV, Pro Hac Vice, Husch Blackwell LLP, St. Louis, MO, Christopher Claiborne Miles, Husch Blackwell LLP, Kansas City, MO, Elliot Belilos, PHV, Gary H. Baise, PHV, Pro Hac Vice, OFW Law, Washington, DC, Travis Lillie, Missouri Attorney General, Springfield, MO, for Plaintiff Agricultural Retailers Association.

Laura Zuckerman, State Of California Department of Justice Attorney General's Office, Oakland, CA, Heather Colleen Leslie, Office of the Attorney General, Sacramento, CA, for Defendant.

MEMORANDUM AND ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE

This case concerns California's Proposition 65, which, among other things, requires warning labels for products containing chemicals known to the state of California to cause cancer, as determined by certain outside entities. The parties have filed cross motions for summary judgment on plaintiffs’ claim that the warning requirement, as applied to the chemical glyphosate,¹ violates the First Amendment of the United States Constitution.² (Docket Nos. 117, 124.)

I. Background

Under Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.5 - 25249.14 ("Proposition 65"), the Governor of California is required to publish a list of chemicals (the "Proposition 65 list") known to the State to cause cancer, as determined by, inter alia, certain outside entities, including the United States Environmental Protection Agency ("EPA"), the United States Food and Drug Administration ("FDA"), and the International Agency for Research on Cancer ("IARC").³ AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 431-34, 260 Cal.Rptr. 479 (3d Dist. 1989) (citing, inter alia, Cal. Labor Code 6382(b)(1) ); see also Cal. Code Regs. tit. 27 §§ 25306(m), 25904(b)⁴ ("A chemical or substance shall be included on the list [of chemicals known to the state to cause cancer ] if it is classified by the International Agency for Research on Cancer" as "carcinogenic to humans" or "[p]robably carcinogenic to humans" and there is "sufficient evidence of carcinogenicity in experimental animals.").⁵

Proposition 65 also prohibits any person in the course of doing business from knowingly and intentionally exposing anyone to the listed chemicals without a prior "clear and reasonable" warning, with this prohibition taking effect 12 months after the chemical has been listed. Cal. Health & Safety Code §§ 25249.6, 25249.10(b) ; Deukmejian, 212 Cal. App. 3d at 431-34, 260 Cal.Rptr. 479. While the statute does not explain what constitutes a clear and reasonable warning, OEHHA regulations provide two "safe harbor" warnings which are per se clear and reasonable. The first safe harbor warning contains a black exclamation point in a yellow triangle with the words "WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov." Cal. Code Regs. tit. 27, § 25603(a). The second safe harbor warning, the "short form" warning, includes a black exclamation point in a yellow triangle and the words "WARNING: Cancer – www.P65Warnings.ca.gov." Cal. Code Regs. tit. 27, § 25603(b).

Failure to comply with Proposition 65 may result in penalties up to $2,500 per day for each failure to provide an adequate warning, and enforcement actions may be brought by the California Attorney General, district attorneys, certain city attorneys and city prosecutors, or private citizens, who may recover attorney's fees. Cal. Health & Safety Code § 25249.7 ; Cal. Code Regs. tit. 11 § 3201.

In 2015, the IARC classified glyphosate as "probably carcinogenic" to humans based on "sufficient evidence" that it caused cancer in experimental animals and "limited evidence" that it could cause cancer in humans. (Zuckerman Decl., Ex. A, at 361-99 (Docket No. 134-4, 134-5).) However, several other organizations, including the EPA, other agencies within the World Health Organization, and government regulators from multiple countries, have concluded that there is insufficient or no evidence that glyphosate causes cancer.⁶ (Heering Decl. (Docket No. 117-4), Exs. N, R, S, T, U, Z, AA, MM, NN, OO, PP, QQ, RR, SS, WW, XX, CCC (Docket Nos. 117-18, 117-22 to 117-25, 117-31, 117-32, 117-44 to 117-50, 117-54, 117-55, 117-60) (reports or findings from, inter alia, the EPA, European Commission Health & Consumer Protection Directorate-General, WHO Int'l Programme on Chem. Safety, Germany, U.N. Food & Agric. Org., Canada, European Chems. Agency, Australia, New Zealand, Japan, and South Korea). The EPA reaffirmed its determination in April 2019, and then in August 2019, stated that it would not approve herbicide labels with a Proposition 65 warning, as such labels would be false and misleading and "misbranded" under the federal herbicide labeling law, 7 U.S.C. § 136a. (Heering Decl. Exs. E, WW (Docket Nos. 117-9, 1117-54).)

As a result of the IARC's classification of glyphosate as probably carcinogenic, the OEHHA listed glyphosate as a chemical known to the state of California to cause cancer on July 7, 2017, and thus the attendant warning requirement was to take effect on July 7, 2018. (See Heering Decl., Ex. II (Docket No. 117-40).) This court preliminarily enjoined the warning requirement on February 26, 2018 (Docket No. 75), and thus at no time have plaintiffs been required to post glyphosate Proposition 65 warnings for their products.

II. Procedural History

After a hearing, the court preliminarily enjoined the Attorney General from enforcing California Health & Safety Code § 25249.6 ’s requirement that any person in the course of doing business provide a clear and reasonable warning before exposing any individual to glyphosate as against plaintiffs, plaintiffs’ members, and all persons represented by plaintiffs. (Docket No. 75.) In doing so, the court first found that plaintiff's First Amendment challenge was ripe, because plaintiffs faced a significant risk of injury based on, among other things, the threat of private suits and the costs of testing their products to avoid or defend such suits.

The court then found that a Proposition 65 warning for glyphosate was not purely factual and uncontroversial under the First Amendment, as required for compelled commercial speech under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), and CTIA-The Wireless Association v. City of Berkeley, 854 F.3d 1105, 1117-19 (9th Cir. 2017) (" CTIA I").⁷ The court explained, among other things, that Proposition 65 and its regulations required a warning stating that the chemical was known to the State of California to cause cancer, and this warning would be misleading to the ordinary consumer because "[i]t is inherently misleading for a warning to state that a chemical is known to the state of California to cause...