Balancing free speech with a right to know about possible carcinogens

Since 1986, California’s Proposition 65 has required the Governor to publish a list of chemicals known to the state to cause cancer or other reproductive harm. This list, which is updated once a year, currently contains approximately 900 chemicals.

Once a chemical is listed, Proposition 65 further requires businesses to provide “clear and reasonable warning” to Californians about significant exposures to such chemicals. Failure to do so can result in civil penalties as high as $2,500 per violation per day.

Glyphosate is one of the chemicals currently placed on the Proposition 65 list. However, whether glyphosate truly poses a carcinogenic hazard is the ongoing subject of scientific research and debate. Glyphosate is also the chemical at issue in this month’s 9th U.S. Circuit Court of Appeals decision in National Association of Wheat Growers v. Bonta, where the court held that California cannot require carcinogen warnings for exposures to glyphosate. Here is why:

This case involved the application of Proposition 65’s warning requirement to glyphosate, one of the most commonly used herbicides.

In 2015, the International Agency for Research on Cancer identified glyphosate as “probably carcinogenic” to humans. Glyphosate was thus placed on the Proposition 65 list of known carcinogens and certain businesses whose products expose consumers to glyphosate were required to provide warning to California consumers that glyphosate is a carcinogen.

In 2017, several agricultural trade associations filed suit against the Attorney General of California, alleging that Proposition 65’s warning requirements for glyphosate violated their First Amendment right to be free from compelled speech. The district court agreed and issued a permanent injunction.

On appeal, the 9th Circuit affirmed the district court’s injunction in a 2-1 decision, finding that California’s Proposition 65 warning as applied to glyphosate is unconstitutional compelled speech under the First Amendment. The determinative question before the 9th Circuit was what level of scrutiny applied to the Attorney General’s glyphosate warning.

Because California’s glyphosate warning is considered compelled commercial speech, the 9th Circuit had to decide whether intermediate scrutiny, which requires the government to “directly advance” a “substantial” governmental interest, and the means chosen must not be “more extensive than necessary,” should apply. Or, alternatively, whether the warning could be analyzed under the lower standard which only requires the compelled speech be “reasonably related” to a substantial government interest and not be “unjustified or unduly burdensome.” Zauderer v. Off. of Disciplinary Couns. of Supreme Ct. of Ohio, 471 U.S. 626, 651 (1985). However, to qualify for this lower scrutiny, the compelled commercial speech must disclose “purely factual and uncontroversial information.” Id.

The 9th Circuit held that no version of California Proposition 65 glyphosate warning offered by the Attorney General qualified for the lower level of review under Zauderer because the warning is neither “purely factual” nor “uncontroversial.” Nat’l Ass’n of Wheat Growers, 2023 WL 7314307, at *14. The court reasoned that the warning cannot be deemed purely factual because “while California may literally ‘know’ that glyphosate causes cancer as defined by the statute and regulations, an ordinary consumer would not understand the nuance between ‘known’ as defined in the statute and ‘known’ as commonly interpreted without knowledge of the scientific debate on that subject.” Id. at *12. Moreover, the glyphosate warning is not uncontroversial “from an objective scientific standpoint,” the court found, because here “IARC stands essentially alone in its determination that glyphosate is probably carcinogenic to humans, while EPA, OEHHA, and regulators from around the world conclude that it is not.” Id.

The court was thus left to consider whether California’s glyphosate warning passes intermediate scrutiny, finding that while “California unquestionably has a substantial interest in preserving the health of its citizens” compelling plaintiffs to warn consumers “of a potential ‘risk’ never confirmed by any regulatory body—or of a hazard not ‘known’ to more than a small subset of the scientific community—does not directly advance that interest.” Id. at *16.

In its dissenting opinion, Circuit Judge Schroeder criticizes the majority for “read[ing] Zauderer too narrowly by suggesting that if there is any disagreement involving the subject matter, Zauderer cannot apply, even if what the state actually requires is factual information.” Id. at *18. Schroeder’s dissent further notes “[i]n a scientific context, as presented here, our understanding of what is noncontroversial should not require scientific unanimity. Id.

This is not the first time that businesses have successfully challenged Proposition 65’s warning requirement. Last year, the 9th Circuit also found that warnings of cancer related to acrylamide in food and beverages violate the First Amendment. California Chamber of Com. v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468 (9th Cir. 2022). There, the 9th Circuit agreed with the district court that the acrylamide warning is not uncontroversial “because it elevates one side of a legitimately unresolved scientific debate about whether eating foods and drinks containing acrylamide increases the risk of cancer.” Id. at 478-79.

These cases present an important ethical dilemma. On the one hand, freedom of speech under the First Amendment occupies a sacred place in our democracy. And if we value free speech, we must agree that businesses should not be unjustifiably compelled to issue messages to their consumers that they disagree with. On the other hand, consumers must have a right to be informed about potentially harmful ingredients in products and we cannot ignore the risks associated with a “wait and see” approach when it comes to the potential for an ingredient in a product to cause cancer. So, how do we strike a balance between these two obligations?

Shroeder’s dissent suggests that scientific unanimity should not be required for the lower scrutiny under Zauderer to apply. Perhaps Zauderer should no longer be the exception to intermediate scrutiny, but rather the default framework by which courts analyze these Proposition 65 carcinogenic warnings in the consumer market given their important implications. This framework seems to strike a nicer balance between still protecting free speech and also protecting the public from a potentially harmful product.

In addition, California can certainly do more to convey their messaging about a potentially carcinogenic hazard to consumers, even when that ingredient or product hasn’t been definitively found to increase the risk of cancer, without placing the entire burden on the product’s maker or as the 9th Circuit said, “without using others as a billboard.” After all, the ballot initiative that created Proposition 65 passed by a 63-37 percent margin, evidencing that Californians want this information and thus the state should do more to provide it.