Prop 65 Update: National Association of Wheat Growers et. al. v. Bonta
On November 7, 2023, the U.S. Court of Appeals for the 9th Circuit affirmed the decision of the Eastern District of California finding for the plaintiffs and the entry of a permanent injunction enjoining the California Attorney General from enforcing Proposition 65’s (“Prop 65”) carcinogen warning requirement for the herbicide glyphosate. In National Association of Wheat Growers et. al. v. Bonta, a coalition of agricultural producers and business entities asserted that Prop 65’s warning requirement violated their First Amendment rights to be free from compelled speech.
The government may only compel commercial speech if, in doing so, it can demonstrate that the speech meets the requirements of intermediate scrutiny. However, there is an exception for compelled commercial speech that is “purely factual and uncontroversial.”
The 9th Circuit determined that the Prop 65 warnings for glyphosate were not based on purely factual and uncontroversial information because the robust scientific disagreement as to whether glyphosate was actually carcinogenic created clear controversy. The Court also held that none of the Attorney General’s proposed warnings for glyphosate were purely factual because, even if the warnings were factually correct, the totality of the warning was “nonetheless misleading” and inappropriately conveys the message that California knows glyphosate causes cancer, which would be misleading to an average consumer. The warning is also controversial because it requires plaintiffs to convey a message they fundamentally disagree with.
Accordingly, because no exception applied, the Court applied the higher intermediate level of scrutiny to the warning labels, which requires a showing that the compelled speech will directly advance a substantial government interest using means no more extensive than necessary. The 9th Circuit held that, while the California government has a substantial interest in protecting the health of its citizens, compelling warning labels where no scientific consensus that glyphosate is a carcinogen exists does not advance that interest. Additionally, if it wants to alert people about potential hazards of glyphosate as found by International Agency for Research on Cancer, California has less intrusive means of doing so than imposing warning label requirements and compelling commercial speech.