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National Association of Wheat Growers v. Zeise

United States District Court, E.D. California

February 26, 2018

NATIONAL ASSOCIATION OF WHEAT GROWERS; NATIONAL CORN GROWERS ASSOCIATION; UNITED STATES DURUM GROWERS ASSOCIATION; WESTERN PLANT HEALTH ASSOCIATION; IOWA SOYBEAN ASSOCIATION; SOUTH DAKOTA AGRI-BUSINESS ASSOCIATION; NORTH DAKOTA GRAIN GROWERS ASSOCIATION; MISSOURI CHAMBER OF COMMERCE AND INDUSTRY; MONSANTO COMPANY; ASSOCIATED INDUSTRIES OF MISSOURI; AGRIBUSINESS ASSOCIATION OF IOWA; CROPLIFE AMERICA; AND AGRICULTURAL RETAILERS ASSOCIATION, Plaintiffs,
v.
LAUREN ZEISE, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT; and XAVIER BECERRA, in his official capacity as Attorney General of the State of California, Defendants.

          MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY INJUNCTION

          WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE.

         Before the court is plaintiffs' Motion for Preliminary Injunction. (Docket No. 29.) The court held a hearing on the motion on February 20, 2018.

         I. Factual and Procedural History

         This case concerns a challenge to California's listing of glyphosate[1] as a chemical known to the State of California to cause cancer, as well as a challenge to California's warning requirements that accompany that listing. Plaintiffs claim, among other things, that the listing and warning requirements violate the First Amendment by compelling them to make false, misleading, and highly controversial statements about their products, and they seek a preliminary injunction on this basis.[2]

         Under Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.5-25249.14 (“Proposition 65”), the Governor of California is required to publish a list of chemicals known to the State to cause cancer, as determined by, inter alia, certain outside entities, including the United States Environmental Protection Agency (“EPA”), the United States Food and Drug Administration (“FDA”), and the International Agency for Research on Cancer (“IARC”).[3] AFL-CIO v. Deukmejian, 212 Cal.App.3d 425, 431-34 (3d Dist. 1989) (citing, inter alia, Cal. Labor Code 6382(b)(1)); see also Cal. Code Regs. tit. 27 §§ 25306(m), 25904(b)[4] (“A chemical or substance shall be included on the list [of chemicals known to the state to cause cancer] if it is classified by the International Agency for Research on Cancer” as “carcinogenic to humans” or “[p]robably carcinogenic to humans” and there is “sufficient evidence of carcinogenicity in experimental animals.”).[5]

         Proposition 65 also prohibits any person in the course of doing business from knowingly and intentionally exposing anyone to the listed chemicals without a prior “clear and reasonable” warning, with this prohibition taking effect 12 months after the chemical has been listed. Cal. Health & Safety Code § 25249.6; Deukmejian, 212 Cal.App.3d at 431-34. Failure to comply may result in penalties up to $2, 500 per day for each failure to provide an adequate warning, and enforcement actions may be brought by the California Attorney General, district attorneys, certain city attorneys and city prosecutors, and private citizens who may recover attorney's fees. Cal. Health & Safety Code § 25249.7(b), Cal. Code Regs. tit. 11 § 3201.

         In 2015, the IARC classified glyphosate as “probably carcinogenic” to humans based on evidence that it caused cancer in experimental animals and limited evidence that it could cause cancer in humans. (Zuckerman Decl. (Docket No. 49), Ex. H, Preamble (Docket No. 49-8), and Ex. O, IARC Glyphosate, from Monograph 112 (Docket No. 49-15).) However, several other organizations, including the EPA and other agencies within the World Health Organization, have concluded that there is no evidence that glyphosate causes cancer. (Prins Decl., Exs. E-L (Docket Nos. 29-8 through 29-15).)[6] As a result of the IARC's classification of glyphosate as probably carcinogenic, the OEHHA issued a Notice of Intent to List Glyphosate in November 2015. (Zuckerman Decl., Ex. Q (Docket No. 49-17).)

         The OEHHA listed glyphosate as a chemical known to the state of California to cause cancer on July 7, 2017, and thus the attendant warning requirement takes effect on July 7, 2018. (Zuckerman Decl., Ex. T, OEHHA Chemicals Known to the State to Cause Cancer or Reproductive Toxicity List (December 28, 2017) (Docket No. 49-20).)

         II. Discussion

         Injunctive relief is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). In order to obtain a preliminary injunction, the moving party must establish (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

         A. Ripeness

         Before the court examines the merits of plaintiffs' First Amendment claim, the court will consider whether this claim is ripe. “Ripeness is peculiarly a question of timing, designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (citations and internal punctuation omitted). Courts must examine whether a case is ripe because their role “is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution.” Id.

         The ripeness inquiry includes both “constitutional” and “prudential” components. Id. Under the constitutional component of standing, courts consider “whether the plaintiffs face a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement, or whether the alleged injury is too imaginary or speculative to support jurisdiction.” Id. (citations and internal quotations omitted). Under the prudential component, courts consider (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration. Id. at 1142. For the reasons discussed below, the court finds that plaintiffs' First Amendment challenge is ripe under both the constitutional and prudential inquiries.

         First, defendants argue that plaintiffs' First Amendment challenge is unripe because plaintiffs may not have to provide any warning if their products' glyphosate levels are below the “safe harbor” level that will likely be adopted by the State before the warnings are required. However, regardless of the State's possible enactment of a safe harbor level, plaintiffs still face a significant risk of injury. The court recognizes that (1) Proposition 65 provides that no warning is required for a product where an exposure poses no significant risk assuming lifetime exposure at the level in question, Cal. Health & Safety Code § 25249.10; (2) the OEHHA has set specific safe harbor levels for several chemicals, and no warnings are required if the daily exposure caused by a product is below that safe harbor level, Cal. Code Regs. tit. 27 § 25705; and (3) the OEHHA has proposed a safe harbor level of 1, 100 micrograms per day for glyphosate, and the corresponding regulation setting that level is expected to be completed by July 1, 2018, (Fernandez Decl. ¶ 9 (Docket No. 48)).

         Nevertheless, assuming plaintiffs' products were tested and found to contain concentrations of glyphosate below the safe harbor level as set by Cal. Code. Regs. tit. 27 § 25705, plaintiffs would still have no reasonable assurance that they would not be subject to enforcement action. Plaintiffs have provided evidence that private plaintiffs have brought enforcement actions for various chemicals notwithstanding a defense of compliance with the safe harbor level for those chemicals, including where the California Attorney General said a proposed enforcement suit had no merit.[7] Thus, plaintiffs, who have stated they intend to give no warning based on their constitutional right against compelled speech, face a credible threat of enforcement as a result of exercising such right, regardless of the possible enactment of a safe harbor level for glyphosate.[8]

         Defendants claim that enforcement actions would be unlikely in the event that a product did not exceed the safe harbor level for glyphosate, citing both the steps required to file suit (which require 60 days' notice and the filing of a certificate of merit) and the fact that the Attorney General will likely inform the private enforcer that (1) there was no violation, (2) an action was not in the public interest, and (3) the action would not warrant civil penalties and fees. Defendants also note that if the private enforcer refused to withdraw its notice of violation, the Attorney General would then post a letter on the Attorney General website stating that there was no merit to the proposed enforcement action. Notwithstanding these purported barriers, one California Court of Appeal has explained that the instigation of Proposition 65 enforcement actions is “easy - and almost absurdly easy at the pleading stage and pretrial stages.” See Consumer Def. Grp. v. Rental Hous. Indus. Members, 137 Cal.App.4th 1185, 1215 (4th Dist. 2006).

         Further, in order to take advantage of the safe harbor, plaintiffs would be required to test their products to determine whether their products exceeded the safe harbor level, incurring the attendant costs, which in itself is a cognizable injury. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 154-55 (2010) (farmers seeking injunctive relief had standing ...


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