Court Rules that Proposition 65 Glyphosate Warning Violates the First Amendment

Court Rules that Proposition 65 Glyphosate Warning Violates the First Amendment

June 24, 2020, Covington Alert

On June 22, 2020, the Eastern District of California ruled in National Ass’n of Wheat Growers v. Becerra, No. 17-2401, that requiring a Proposition 65 warning on products containing glyphosate violated the First Amendment and on that basis granted summary judgment for plaintiffs and a permanent injunction against the State of California. This ruling will be of significant interest to companies that must provide warnings pursuant to Proposition 65, as well as to upstream product manufacturers (for example, of pesticides).

No proof glyphosate is “known” to cause cancer. At issue in the case was glyphosate, a pesticide regulated by the EPA and according to the court “widely used to control weeds in various settings.” California had concluded that glyphosate required warnings under Proposition 65, because the International Agency for Research on Cancer (“IARC”) had concluded in 2015 that glyphosate was “probably carcinogenic.”

The court found that requiring a Proposition 65 warning for glyphosate would be misleading, and thus run afoul of the First Amendment, because “[e]very regulator of which the court is aware, with the sole exception of the IARC, has found that glyphosate does not cause cancer or that there is insufficient evidence to show that it does.” Accordingly, the court concluded that it would be misleading for a product label to indicate that glyphosate is “known” to cause cancer.

No “waffle” warning. The court also rejected the notion of a “waffle” warning -- “maybe it does cause cancer/maybe it doesn’t.” The court reasoned that such a warning was still misleading, because it “conveys the message that there is equal weight for and against the authority that glyphosate causes cancer, when the weight of the evidence is that glyphosate does not cause cancer.” This aspect of the court’s ruling may be the most far-reaching: it suggests that the strength and wording of the warning must bear some proportionality to the weight of the evidence supporting the warning.

While the court’s opinion and associated injunction barring enforcement of Proposition 65 with respect to glyphosate technically applies only “as against plaintiffs, plaintiffs’ members, and all persons represent by plaintiffs,” the logic of the opinion was not plaintiff-specific, and would apply to other entities a practical matter. That said, the district court’s opinion would likely not be binding as to any such third parties as a technical matter, and in any event is likely to be appealed.

What chemicals might be next? The court’s ruling may pave the way for challenges to Proposition 65 warnings—and perhaps other types of warnings as well—for substances based on a claimed lack of scientific support. That said, the court’s opinion was carefully limited in a number of ways, including:

• The court stressed repeatedly that IARC was the only regulator to find that glyphosate might cause cancer, and did not address the threshold for how many agencies must make such a determination before a Proposition 65 warning requirement satisfies the First Amendment.
• The court explained that its opinion was distinct from tort lawsuits relating to glyphosate, remarking that “whether a reasonable juror could find that glyphosate causes cancer is a separate question facing the court today -- whether the statement that glyphosate is known to cause cancer is purely factual and uncontroversial.”
• The court observed that California could use alternative options “to inform consumers of its determination that glyphosate is a carcinogen,” such as “advertising campaigns or posting information on the Internet.”
• While the court noted that EPA had opined that a “Proposition 65 warning for glyphosate would be false and misleading and would violate the federal herbicide labeling law,” plaintiffs did not raise, and so the court did not address, any preemption arguments.

False advertising claims? Perhaps most notably, the opinion will not end false advertising suits relating to glyphosate-containing products. For example, consumers have brought suits arguing that foods containing glyphosate cannot be marketed as “wholesome,” Doss v. General Mills, Inc., No. 19-12714, 2020 WL 2554384 (11th Cir. May 20, 2020), and this opinion does not directly preclude or limit such lawsuits.

Nevertheless, this decision is a major development, and presents opportunities for companies to challenge warnings that may lack adequate scientific support.

If you have any questions concerning the material discussed in this client alert, please contact the following members of our Environmental practice.