A U.S. District Court recently barred enforcement of California’s Proposition 65 warning requirement on the First Amendment ground of “compelled speech.” Proposition 65 requires businesses to provide warnings to consumers before exposing them to over 900 chemicals linked to cancer or reproductive toxicity. Although the State of California will almost certainly appeal the decision, National Association of Wheat Growers et al., v. Xavier Becerra could be a turning point for Proposition 65 and set the stage for further challenges to consumer product warning labels on First Amendment grounds.
In the recent decision, Judge William Shubb recognized Proposition 65 warning labels as a form of compelled speech. The case stems from warning labels for products containing glyphosate, a widely used herbicide. Following the International Agency for Research on Cancer’s classification of glyphosate as “probably carcinogenic,” the State recognized glyphosate as a chemical “known to the State to cause cancer” and required warning labels on such products. However, the evidence showed that numerous other agencies, including the U.S. Environmental Protection Agency, found there to be insufficient or no evidence that glyphosate causes cancer – which the State also knew about. The Court held the State could not compel companies to provide a warning (compelled speech) without adequate governmental justification, a violation of the First Amendment freedom of speech.
The State is anticipated to appeal the ruling. If an appellate court upholds the decision, it could establish a floor of scientific consensus required to justify a compelled warning label where the evidentiary basis for a warning is in dispute. While it remains to be seen how many products will fall below this floor and thus outside the purview of the warning requirement, the decision could mean that fewer products will require Proposition 65 warning labels.
Stay tuned for updates on the State’s expected appeal, and what any further decisions may mean for Californians and other stakeholders.
 National Association of Wheat Growers, et al. v. Xavier Becerra, Case No. 17 Civ. 2401, 2020 WL 3412732 (E.D. Cal. June 22, 2020).