Nat'l Ass'n of Wheat Growers v. Bonta
| Docket Number | 20-16758 |
| Decision Date | 07 November 2023 |
| Parties | NATIONAL ASSOCIATION OF WHEAT GROWERS; NATIONAL CORN GROWERS ASSOCIATION; UNITED STATES DURUM GROWERS ASSOCIATION; WESTERN PLANT HEALTH ASSOCIATION; MISSOURI FARM BUREAU; 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; AGRICULTURAL RETAILERS ASSOCIATION, Plaintiffs-Appellees, v. ROB BONTA, In His Official Capacity as Attorney General of the State of California, Defendant-Appellant, and LAUREN ZEISE, In Her Official Capacity as Director of the Office of Environmental Health Hazard Assessment, Defendant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted April 19, 2023 San Francisco, California
Appeal from the United States District Court for the Eastern District of California D.C. No. 2:17-cv-02401-WBS-EFB William B. Shubb, District Judge, Presiding
Laura J. Zuckerman (argued), Supervising Deputy Attorney General Dennis A. Ragen, Andrew J. Wiener, Harrison M. Pollak, David Zonana, and Megan K. Hey, Deputy Attorneys General; Edward H Ochoa, Senior Assistant Attorney General; Rob M. Bonta California Attorney General; California Attorney General's Office, Oakland, California; for Defendants-Appellant.
Richard P. Bress (argued), Philip J. Perry, Andrew D. Prins, Tyce R. Walters, and Nicholas L. Schlossman, Latham &Watkins LLP, Washington, D.C.; Catherine L. Hanaway, Matthew T. Schelp, Matthew P. Diehr, and Natalie R. Holden, Husch Blackwell LLP, St. Louis, Missouri; Christopher C. Miles, Husch Blackwell LLP, Kansas City, Missouri; Ann M. Grottveit, Kahn Soares &Conway LLP, Sacramento, California; Trenton H. Norris, Hogan Lovells LLP, San Francisco, California; Stewart D. Fried and Gary H. Baise, Olsson Frank Weeda Terman Matz PC, Washington, D.C.; Richard D. Gupton, Agricultural Retailers Association, Arlington, Virgina; for Plaintiffs-Appellees.
Paul J. Napoli and Hunter J. Shkolnik, NS PR Law Services LLC, Hato Rey, Puerto Rico; Thomas C. Goldstein, Eric F. Citron, Charles Davis, Daniel Woofter, and Molly Runkle, Goldstein &Russell PC, Bethesda, Maryland; for Amicus Curiae National Black Farmers Association.
Vivian H.W. Wang, Natural Resources Defense Council, New York, New York; Avinash Kar, Natural Resources Defense Council, San Francisco, California; for Amici Curiae Natural Resources Defense Council, United Steelworkers, Alliance of Nurses for Healthy Environments, As You Sow, Californians for Pesticide Reform, Center for Food Safety, Clean Water Action, Environmental Law Foundation, Pesticide Action Network North America (PANNA), and San Francisco Bay Physicians for Social Responsibility.
Seth E. Mermin, Public Good Law Center, Berkeley, California; Eliza Duggan, Center for Consumer Law and Economic Justice; Claudia Polsky, Assistant Clinical Professor of Law; UC Berkeley School of Law, Berkeley, California; for Amicus Curiae UC Berkeley Center for Consumer Law & Economic Justice.
Cory L. Andrews and John M. Masslon II, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Washington Legal Foundation.
Mary-Christine Sungaila, Complex Appellate Litigation Group LLP, Newport Beach, California; Joshua R. Ostrer and Lauren Jacobs, Buchalter APC, Irvine, California; Kari Fisher, Senior Counsel, California Farm Bureau Federation, Sacramento, California; for Amici Curiae California Farm Bureau Federation, California Cotton Ginner & Growers Association, Western Agricultural Processors Association, California Fresh Fruit Association, and California Citrus Mutual.
Tara S. Morrissey and Stephanie A. Maloney, U.S. Chamber Litigation Center, Washington, D.C.; Erika C. Frank and Heather Wallace, California Chamber of Commerce, Sacramento, California; Pratik A. Shah, James E. Tysse, and Lide E. Paterno, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; for Amici Curiae Chamber of Commerce of the United States of America and The California Chamber of Commerce.
Jonathan L. Williams, Jonathan L. Williams PA, Tallahassee, Florida, for Amici Curiae Risk-Mitigation Scholars.
Gary Roberts, Denton U.S. LLP, Los Angeles, California; Sarah R. Choi, Dentons U.S. LLP, San Francisco, California; for Amici Curiae California League of Food Producers, California Manufacturers &Technology Association, California Restaurant Association, California Retailers Association, Civil Justice Association Of California, American Beverage Association, American Chemistry Council, American Frozen Food Institute, American Spice Trade Association, Consumer Brands Association, Consumer Healthcare Products Association, Council for Responsible Nutrition, Frozen Potato Products Institute, Juice Products Association, Peanut and Tree Nut Processors Association, and Snac International.
Before: Mary M. Schroeder, Consuelo M. Callahan, and Patrick J. Bumatay, Circuit Judges.
SUMMARY[*]
The panel affirmed the district court's grant of summary judgment in favor of plaintiffs and its entry of a permanent injunction enjoining the California Attorney General from enforcing Proposition 65's carcinogen warning requirement for the herbicide glyphosate, best known as the active ingredient in the herbicide Roundup.
In 2015, the International Agency for Research on Cancer (IARC) identified glyphosate as "probably carcinogenic" to humans. That conclusion is not shared by a consensus of the scientific community. As a result of the IARC identification, certain businesses whose products expose consumers to glyphosate were required to provide a Prop 65 warning that glyphosate is a carcinogen. Plaintiffs, a coalition of agricultural producers and business entities, asserted that Prop 65's warning violated their First Amendment rights to be free from compelled speech.
The government may only compel commercial speech if it can demonstrate that in so doing it meets the requirements of intermediate scrutiny. However, an exception applies to compelled commercial speech that is "purely factual and uncontroversial." In that scenario, the government need only demonstrate the compelled speech survives a lesser form of scrutiny akin to a rational basis test.
The panel concluded that the government's proposed Prop 65 warnings as applied to glyphosate were not purely factual and uncontroversial, and thus were subject to intermediate scrutiny. The proposed warning that "glyphosate is known to cause cancer" was not purely factual because the word "known" carries a complex legal meaning that consumers would not glean from the warning without context and thus the word was misleading. Moreover, saying that something is carcinogenic or has serious deleterious health effects- without a strong scientific consensus that it does-is controversial. As to the most recent warning proposed by the California Office of Environmental Health Hazard Assessment (OEHHA), the panel held that the warning still conveys the overall message that glyphosate is unsafe, which is, at best disputed. The warning therefore requires plaintiffs to convey a controversial, fiercely contested message that they fundamentally disagree with.
Applying intermediate scrutiny, the panel held that because none of the proposed glyphosate Prop 65 warnings were narrowly drawn to advancing California's interest in protecting consumers from carcinogens, and California had less burdensome ways to convey its message than to compel plaintiffs to convey it for them, the Prop 65 warning requirement as applied to glyphosate was unconstitutional.
Judge Schroeder stated that: (1) there is no Supreme Court guidance on compelled commercial speech in the sphere of product liability and consumer protection and the majority's reliance on an opinion addressing compelled speech in the context of access to abortion was misplaced; (2) the majority refused to look at the actual content of the recent OEHHA warning to determine whether it consisted of factually accurate information and instead assessed the warning's overall message; and (3) there was a strong reason for the district court to reconsider the scientific record. In Judge Schroeder's view, the new OEHHA warning fulfills the requirements of Prop 65, the validity of which was not questioned.
OPINION
This case involves the application of California Proposition 65's (Prop 65) "warning requirement" to a chemical called glyphosate. Glyphosate is a widely used herbicide in multiple settings and is best known as the main active ingredient in Roundup, a herbicide manufactured by Monsanto Company. In 2015, the International Agency for Research on Cancer (IARC) identified glyphosate as "probably carcinogenic" to humans. As a result, under the current regulatory scheme implementing Prop 65, the California Office of Environmental Health Hazard Assessment (OEHHA) was required to place glyphosate on the State's list of known carcinogens. Due to that listing, Prop 65 also requires certain businesses whose products expose consumers to glyphosate to provide a clear and reasonable warning to those consumers that glyphosate is a carcinogen. While IARC is of the view that glyphosate is probably carcinogenic to humans, that conclusion is not shared by a consensus of the scientific community.
Plaintiffs are a coalition of agricultural producers and business entities that sell glyphosate-based herbicides, use glyphosate to cultivate their crops, or process such crops into foods sold in California....
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