California’s Proposition 65, which has spawned litigation over scientifically questionable “known to the state [of California] to cause cancer” warnings on such everyday products as cola drinks, coffee, beer, and soy sauce, see Riva v. Pepsico, Inc., 82 F. Supp.3d 1045, 1062 (N.D. Cal. 2015), took one on the chin recently in the Ninth Circuit at the hands of free speech under the First Amendment.
We can’t say it was unexpected – indeed, Prop 65 was one of the targets of the First Amendment’s prohibition on governmentally compelled speech that we identified in our 2019 post on American Beverage Ass’n v. City & County of San Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc) (“ABA”). And lo it has come to pass.
In California Chamber of Commerce v. Council for Education & Research on Toxics, 29 F.4th 468 (9th Cir. 2022) (“CCoC”), a number of business groups originally sued the State of California seeking a preliminary injunction “to halt acrylamide litigation brought under . . . Prop. 65.” Id. at 472. The business plaintiffs won in the district court, but on appeal one of the most insidious aspects of Proposition 65 reared its ugly head – a group, heavily engaged in private litigation “enforcing” Prop 65 “intervened as a defendant” and wound up as the “sole appellant challenging the preliminary objection.” Id.
Thus a private group dedicated to filing Prop 65 lawsuits continued litigating even after the state itself declined to pursue an appeal. This situation is illustrative of the extent to which Prop 65 has perversely farmed out state enforcement powers to so-called “private attorneys generals.” If anyone wonders where Texas got its idea for private enforcement of an abortion ban, look no further.
Fortunately for limited government everywhere, the private group lost in CCoC – unanimously.
As we discussed in our ABA post, one of the ways that the First Amendment limits governmental power over speech is the “compelled speech” doctrine. No government – federal, state, or local – may compel a private person, such as a business, to make statements, including product warnings, unless:
the compelled warning (1) requires the disclosure of purely factual and uncontroversial information only, (2) is justified and not unduly burdensome, and (3) is reasonably related to a substantial government interest.
CCoC, 29 F.4th at 477 (citing Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) – which, ironically, is the same decision that opened the Pandora’s Box of attorney solicitation that plagues us to this day).
The would-be Prop 65 notice that the substance in question (acrylamides) were “known” to cause cancer was anything but uncontroversial. One major group (the National Cancer Institute, as well as scientific researchers, found that “a large number of epidemiologic studies in humans have found no consistent evidence that dietary acrylamide exposure is associated with the risk of any type of cancer.” 29 F.4th at 478. Several other groups, as well as the EPA, held the opposing view that these chemicals were “probably” or “likely to be” “carcinogenic.” Id. That degree of scientific dispute – far more evenly matched than anything supporting plaintiffs’ RoundUp related allegations – was sufficient to support a First Amendment-based injunction. “Given this robust disagreement by reputable scientific sources, the court did not abuse its discretion in concluding that the warning is controversial.” Id.
That’s one of the jobs of the First Amendment – as we repeated only recently, one side in a scientific debate should not be allowed to sue the other side into submission. That’s precisely what the First Amendment’s protection of scientific speech prohibits.
Given the divergence of scientific opinion on whether the substance in question was a carcinogen, it was likewise proper to conclude that the Prop 65 warning, with its unwarranted certainty, was “misleading.” CCoC, 29 F.4th at 479. Indeed, when the State of California dropped out of this very litigation, it “stipulated that it does not know that acrylamide causes cancer in humans.” Id. Thus, CCoC also presented the spectacle of a private group purporting to exercise state enforcement powers when the state itself had declined. In any event, for a state (or a private party) to characterize the carcinogenic potential of anything as “known,” where science showed anything but, was fallacious.
Under Prop. 65, a “known” carcinogen carries a complex legal meaning that consumers would not glean from the warning without context. Thus, use of the word “known” is misleading − as the FDA acknowledged the warning might be. . . . [W]hen consumers read “known to the State of California to cause cancer” on the packaging of a food or beverage product, they would believe “that such products pose a risk of cancer in humans. . . . A reasonable person might think that they would consume a product that California knows will increase their risk for cancer. Such a consumer would be misled by the warning because the State of California does not know if acrylamide causes cancer in humans.
Id. at 479 (citations and footnote omitted). Put simply, no government may, consistent with the First Amendment require a private person to repeat governmentally endorsed false statements.
Finally, given the “litigation burden” that Prop 65 creates by virtue of allowing private actors (such as the defendant on appeal) to demand misleading warnings that belie the presence of scientific uncertainty, provided the “undue” burden that supported the injunction. To require cancer warnings that were factually untrue necessarily “damages their [products’] reputation and goodwill with misleading information” – in addition to subjecting them to “civil penalties of up to $2,500 per violation per day.” Id.
The plaintiff litigation group, which did “not even discuss Zauderer” compelled speech, id. at 480, tried instead to clothe itself in First Amendment raiment – alleging that the preliminary injunction against anyone “in privity or acting in concert with” the State of California” was a prior restraint against their supposedly First Amendment-protected litigiousness. Id. at 481-82. These professional litigants, however, could not use the First Amendment to defeat the First Amendment rights of their would-be targets. Yes, enjoining a lawsuit can be a “prior restraint,” CCoC, 29 F.4th at 482, but enjoining a lawsuit that pursues an unconstitutional objective is not.
[Defendant] argues that the district court could not enjoin Prop. 65 litigation on the basis that it had an illegal objective until after the court made a final determination on the merits. . . . But [it] cited no binding precedent supporting its claim that the “falsity” of the compelled speech must be proven at trial, and thus by definition before a preliminary injunction can issue. And the cases cited by [defendant] are distinguishable. . . . No similar speech is barred here − only lawsuits.
Id. at 481 (citation omitted). “Thus, we hold that the preliminary injunction against likely unconstitutional litigation is not an unconstitutional or otherwise impermissible prior restraint. Id. at 482 (emphasis original).
CCoC had little trouble with the remaining two elements required to sustain a preliminary injunction. First, “[i]rreparable harm is relatively easy to establish in a First Amendment case,” requiring only “a colorable First Amendment claim.” Id. (citation and quotation marks omitted). Second, “‘[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.’” Id. (quoting ABA, 916 F.3d at 758).
CCoC establishes (at least in the Ninth Circuit) that that the First Amendment precludes litigation seeking to compel a scientifically controversial product warning – even when pursued by a private entity cloaked with what would otherwise be state enforcement power. We don’t think it can logically be cabined to the peculiar situation created by Prop 65. We note that California has other statutes, such as those discussed in Farm Raised Salmon Cases, 175 P.3d 1170, 1181-83 (Cal. 2008) (see our post here), that broadly authorize private litigants to enforce state statutory requirements. CCoC directly implicates litigation under those statutes, to the extent that plaintiffs seek to impose scientifically controversial product warnings.
Beyond that, given New York Times v. Sullivan, 376 U.S. 254, 265 (1964) (First Amendment applies equally to private litigants), and Shelley v. Kraemer, 334 U.S. 1, 14 (1948) (for purposes of constitutional litigation, “state action” includes acts of judicial officers enforcing state law), it is hardly far-fetched to envision similar actions succeeding against private plaintiffs who similarly demand product warnings that fail to reflect scientific reality. First Amendment compelled speech cases could be based on the same sorts of scientific disputes that currently underlie FDCA-based preemption – but (as in CCoC) with only the existence of the scientific controversy, rather than “clear evidence,” necessary for a prescription medical product manufacturer to prevail.
In case of good judge, break glass.