## Facts

- California’s Proposition 65 requires warnings before exposures to chemicals listed as “known to the state to cause cancer” or reproductive harm and is enforceable through civil penalties by public officials and private enforcers.
- OEHHA must list a chemical if certain “authoritative bodies,” including the International Agency for Research on Cancer (IARC), classify it as carcinogenic.
- In 2015, IARC classified glyphosate as “probably carcinogenic to humans,” relying primarily on animal evidence.
- Other regulators, including the U.S. Environmental Protection Agency and additional authorities, reached contrary assessments, finding glyphosate not likely carcinogenic or finding no evidence of human carcinogenicity at typical exposure levels.
- OEHHA listed glyphosate as “known to the state to cause cancer” in 2017, which would trigger a mandatory Proposition 65 cancer warning for glyphosate exposures beginning in 2018.
- Agricultural associations and related businesses that use or sell glyphosate-related products claimed the required warning would compel them to state that glyphosate is “known” to cause cancer, a message they contended was false or misleading given the broader scientific and regulatory record.

## Issues

1. Whether compelling businesses to warn that glyphosate is “known to the State of California to cause cancer” likely violates the First Amendment as compelled commercial speech that is not purely factual and uncontroversial.
2. Whether the plaintiffs satisfied the requirements for a preliminary injunction, including likelihood of success, irreparable harm, balance of equities, and public interest.

## Decision

- The court granted a preliminary injunction barring the California Attorney General and OEHHA Director from enforcing Proposition 65’s cancer-warning requirement for glyphosate pending final judgment.
- The court found plaintiffs likely to succeed on their First Amendment claim because the mandated “known to cause cancer” warning was not “purely factual and uncontroversial” and was misleading in light of the competing scientific and regulatory findings.
- The court held that proposed “contextualized” warnings did not cure the problem because the regime still required the unqualified core statement that glyphosate is “known” to cause cancer.
- The court found irreparable harm from compelled speech and credited the imminent risk of enforcement and penalties absent compliance.
- The balance of equities and the public interest favored an injunction because the public interest is not served by compelled, misleading warnings.

## Legal Principles

- Compelled commercial disclosures may receive more deferential review only when they are “purely factual and uncontroversial,” reasonably related to a legitimate governmental interest, and not unjustified or unduly burdensome.
- Even under the more deferential compelled-disclosure standard, the government may not force speakers to convey false, misleading, or one-sided messages.
- A warning that ordinary consumers would understand as an established factual claim about causation can be unconstitutional if the state compels it despite substantial dispute and contrary evidence in the record.
- Compelled speech that likely violates the First Amendment constitutes irreparable injury for preliminary-injunction purposes.
- The public interest favors accurate, non-misleading compelled disclosures and protection of constitutional rights.

## Conclusion

The court preliminarily enjoined California from enforcing a Proposition 65 cancer warning for glyphosate because the mandated statement that glyphosate is “known” to cause cancer was likely misleading and controversial, making plaintiffs likely to prevail on their compelled-speech claim under the First Amendment.


Nat’l Ass’n of Wheat Growers v. Zeise, 309 F. Supp. 3d 842 (E.D. Cal. 2018)