Alert 06.11.20
The Evolving Argument Surrounding Federal Preemption of Proposition 65
Ninth Circuit considers whether federal law takes precedence over California statute requiring warnings about chemicals.
Alert
Alert
07.13.20
A district court in the Eastern District of California has granted a permanent injunction barring enforcement of Proposition 65 warning requirements for the chemical glyphosate. Glyphosate, the active ingredient in herbicides such as RoundUp manufactured by the Monsanto Company (Monsanto), has been the subject of thousands of lawsuits in both state and federal courts across the nation over the past couple of years. National Association of Wheat Growers, et al. v. Xavier Becerra, Case No. 17 Civ. 2401, 2020 WL 3412732 (E.D. Cal. June 22, 2020) (National Association of Wheat Growers), however, raises a different issue than the typical failure to warn and personal injury claims that are the focus of glyphosate cases. Plaintiffs in National Association of Wheat Growers, a group of growers’ associations, state agencies, and Monsanto, sued the California Attorney General in his official capacity, stating that the Proposition 65 cancer warning on products containing glyphosate violated the plaintiffs’ First Amendment rights under the U.S. Constitution.
As discussed in Pillsbury’s June 11, 2020 alert, the U.S. Environmental Protection Agency (EPA) has published assessments in 1991, 2005, 2015, and 2017, finding that glyphosate was “not likely to be carcinogenic to humans.” Furthermore, on August 7, 2019, EPA sent a letter to all glyphosate registrants seeking EPA’s approval to amend the labels of their products to include a Proposition 65 cancer warning pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In this letter, EPA stated it would no longer approve product labels claiming that glyphosate is known to cause cancer. Notably, EPA’s letter cited the preliminary injunction issued in National Association of Wheat Growers on February 26, 2018, which enjoined California from enforcing state warning requirements involving glyphosate’s carcinogenicity, in part on the basis that the required warnings statement is false or misleading.
On June 22, 2020, the same court granted a permanent injunction on enforcement of cancer warnings for glyphosate on the grounds that it violates the First Amendment. In an astute opinion which considered the objective reality of Proposition 65 enforcement, U.S. District Court Judge Shubb acknowledged that although plaintiffs’ products likely contain glyphosate levels below Proposition 65’s “no significant risk level” (“NSRL” or “safe harbor level”), and therefore are exempt from providing cancer warnings for glyphosate, plaintiffs still face a risk of “injury” and therefore deemed plaintiffs’ claims ripe for adjudication.
Proposition 65 enforcement actions are almost exclusively brought by private citizen-enforcer plaintiffs. Plaintiffs in National Association of Wheat Growers provided evidence that these private enforcers have brought enforcement actions for various chemicals notwithstanding a defense of compliance with the safe harbor level of those chemicals. Enforcement suits, which can be and have been brought even after the California Attorney General finds that the action has no merit, would force the defendant in the suit to prove its product’s glyphosate exposure falls below the NSRL level. Building an initial defense against these suits generates legal and technical costs arising from testing and conferring with counsel, which constitute a cognizable injury.
The California Attorney General argued that such unwarranted enforcement actions would be unlikely, stating that the Attorney General would stave off the private enforcer by notifying the enforcer that there is no violation, the action would not warrant civil penalties and fees, and that it was against the public interest. Judge Shubb disagreed, stating that the purported barriers would be, at best, a modest deterrence to suits.
After finding Plaintiffs’ challenge ripe for adjudication, the court found that the correct standard to review the alleged First Amendment violation would be pursuant to the intermediate scrutiny test as laid out in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Under this intermediate level of scrutiny, the law at issue “must ‘directly advance the governmental interest asserted’ and must not be ‘more extensive than is necessary to serve that interest.’” Given that the International Agency for Research on Cancer (IARC) was the only regulatory body, to the knowledge of the court, that classifies the chemical glyphosate as carcinogenic, the court held that imposing a Proposition 65 cancer warning for glyphosate would be misleading.
While the California Attorney General submitted several “alternative warnings” in an attempt to clarify that California’s designation of glyphosate as a carcinogen was based on just one finding, the court pointed to the language of the Proposition 65 regulations to show that these alternative warnings were prohibited and would never be allowed under normal circumstances. Because the Attorney General could not show that Proposition 65’s cancer warning requirement for glyphosate either directly advances government interests or that it was not more extensive than necessary to achieve the government interest, the court found that the warning requirement failed the intermediate scrutiny test. On that basis, the court ordered its permanent injunction on California’s enforcement of Proposition 65 carcinogenicity warnings.
The Eastern District’s repudiation of over-warning for cancer will likely be appealed. Until then, manufacturers and distributors should assess whether the products they sell into California contain glyphosate and consult with counsel regarding the necessity of Proposition 65 warnings.