We recently reported on a potentially seminal California court decision that struck down Proposition 65 warning requirements for a consumer product on grounds of “compelled speech.” As anticipated, the State is appealing the decision to the U.S. Court of Appeals for the Ninth Circuit, according to a notice filed Wednesday, September 9th.
The State Office of Environmental Health Hazard Assessment listed glyphosate as a chemical known to the State to cause cancer in 2017 under Proposition 65 despite the fact that almost all other government agencies found there to be insufficient or no evidence that glyphosate causes cancer. However, the State followed the International Agency for Research on Cancer’s classification of glyphosate as “probably carcinogenic,” contrary to the majority. In a major win for farming groups and herbicide makers, the Court held ruled in National Association of Wheat Growers v. Zeise that 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.
California is now challenging the ruling, and Attorney General Xavier Becerra said in a statement, “we won’t let pesticide producers sweep the dangers of cancer-causing pesticides under the rug.” More to come on this important case that may affect other Proposition 65 disputes in the future. The importance of this decision is not in the chemical or product at issue but rather in setting a precedent about whether the State may rely upon a minority scientific view or finding to compel a manufacturer or retailer to place a warning on a consumer product.