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Prop 65 Preliminary Injunction and "Fake News"

A recent Federal Court decision on the issue of whether to grant a preliminary injunction in the ongoing saga of the appropriateness of adding the pesticide Glyphosate to the CA Prop 65 list (see prior posts, here and here) has become the grist for the "Fake News" phenomenon. More specifically, Momsacrossamerica.org issued a press release on February 28, 2018 entitled “Judge Says Public Doesn’t Need Cancer Warning.”

However, a quick scan of the decision issued on February 26th reveals that the judge did no such thing. And a close reading of the court's opinion, whether one agrees with the conclusion or not, brings to light a thorough analysis, with copious citations, of whether the plaintiffs met their burden to obtain a preliminary injunction either (1) to preclude the state of California from adding Glyphosate to the Prop 65 list, which plaintiffs did not; or (2) to enjoin the state of California from enforcing the requirement to label Glyphosate with Prop 65, which plaintiffs did. This is the first time a court has enjoined, in whole or in part, any Prop 65 warning requirements on First Amendment grounds.

Although not until page 17 of a 20-page opinion, the court identified very clearly what it viewed as the primary questions to be resolved in the plaintiffs' petition. As a First Amendment inquiry, the court had to decide what the State of California can constitutionally compel businesses to say.

Chemical Listing Issue

As an initial matter, the court stated that plaintiffs have not shown a likelihood of success on the merits of their claim that the listing of Glyphosate violates the First Amendment, because the listing is government speech, not private speech. As District Court Judge Walter Shubb, Eastern District of California, reiterated: "The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” California’s listing of chemicals it purportedly knows to cause cancer is neither a restriction of private speech nor government-compelled private speech.

In other words, the fact that the listing triggers Prop 65’s warning requirement does not transform the listing itself into government-compelled speech. Indeed, Glyphosate has been listed by California since July 2017 and plaintiffs have not yet been required to provide any consumer-directed warnings. It is only the upcoming July 2018 deadline for providing the Proposition 65 warning that would compel private speech. Thus, Judge Shubb reasoned, plaintiffs have not shown a likelihood of success on the merits of their claim that the underlying listing of Glyphosate violates the First Amendment.

Similarly, plaintiffs have not shown a likelihood of irreparable harm should the court fail to enjoin the listing of Glyphosate, because any harm that plaintiffs might suffer would be caused by the warning requirements of Proposition 65, rather than the listing itself.

Warning Issue

On this issue, the court concluded that where California seeks to compel businesses to provide cancer warnings, the warnings must be factually accurate and not misleading. The court was not persuaded that the opinion of one body (the International Agency for Research on Cancer) relied upon by the CA Office of Environmental Health Hazard Assessments (OEHHA, the agency that recommends to the Governor which chemicals make the Prop 65 list) was sufficient. On this issue, the court reasoned:

"Ordinary consumers do not interpret warnings in accordance with a complex web of statutes, regulations, and court decisions, and the most obvious reading of the Proposition 65 cancer warning is that exposure to glyphosate in fact causes cancer. A reasonable consumer may understand that if the warning says 'known to cause cancer,' there could be a small minority of studies or experts disputing whether the substance in fact causes cancer. However, a reasonable consumer would not understand that a substance is “known to cause cancer” where only one health organization (IARC) had found that the substance in question causes cancer and virtually all other government agencies and health organizations that have reviewed studies on the chemical had found there was no evidence that it caused cancer. Under these facts, the message that glyphosate is known to cause cancer is misleading at best."

Accordingly, the State of California has the burden of demonstrating that a disclosure requirement is purely factual and uncontroversial, not unduly burdensome, and reasonably related to a substantial government interest. California failed to meet the burden.

Comments on Prop 65

Judge Shubb also was very clear that whether Prop 65’s statutory and regulatory scheme is good policy is not at issue in the plaintiffs' petition for preliminary injunction. The court did cite some cases, however, that question the scheme and recognize the reality that Prop 65 enforcement actions result in often-unnecessary injury to companies doing business in California. For example, the court recognized that Plaintiffs, in this case, provided evidence that private plaintiffs have brought enforcement actions for various chemicals notwithstanding a defense of compliance with the safe harbor level for those chemicals, including where the California Attorney General said a proposed enforcement suit had no merit (citing several opinions).

Additionally, in response to the State’s argument that if the private enforcer refused to withdraw its notice of violation, the Attorney General would then post a letter on the Attorney General's website stating that there was no merit to the proposed enforcement action, the court countered: "Notwithstanding these purported barriers, one California Court of Appeal has explained that the instigation of Proposition 65 enforcement actions is 'easy – and almost absurdly easy at the pleading stage and pretrial stages.' See Consumer Def. Grp. v. Rental Hous. Indus. Members, 137 Cal. App. 4th 1185, 1215 (4th Dist. 2006)."

Further, in order to take advantage of the safe harbor, plaintiffs would be required to test their products to determine whether their products exceeded the safe harbor level, incurring the attendant costs, which in itself is a cognizable injury. As the issuance of a partial preliminary injunction does not end the case, the Plaintiffs may be able to take solace in the court’s comments and citations about Prop 65 as the case continues on other issues before the court; i.e. preemption and due process.

However this case ends, the takeaway should not be that this judge has held that the public does not need a cancer warning. Prop 65 certainly has its critics and supporters and the debate will continue.  Fake News, however, has no place in the debate

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Daniel J. Herling

Member / Co-chair, Product Liability Practice

Daniel J. Herling is a highly regarded product liability defense attorney at Mintz. He handles litigation and class actions involving consumer products, leveraging his deep knowledge of California's consumer protection regulations and laws.