Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law


United States District Judge William B. Shubb for the Eastern District of California granted Monsanto Company and Industry Associations’ request to enjoin Proposition 65’s warning requirement for glyphosate on February 26, 2018. The plaintiff’s request to enjoin defendants from listing glyphosate as a chemical known to the State of California to cause cancer was denied.  You can find the court’s ruling here, and a summary of the original complaint here.

Background of this Suit

Monsanto Company (hereinafter “Monsanto”) and Industry Associations filed suit against California State Officials in the Eastern District of California on November 15, 2017, after California added glyphosate to its list of cancer-causing chemicals and announced it will require products containing glyphosate to carry warning labels by July 2018. Glyphosate is the main ingredient in Monsanto’s popular Roundup herbicide. Plaintiffs filed suit against the Director of the California Office of Environmental Health Hazard Assessment (OEHHA) and the Attorney General for the State of California.

Plaintiffs claim that the listing and warning requirements of the Safe Drinking Water and Toxic Enforcement Act of 1986 (hereinafter “Proposition 65”) violate the First Amendment by compelling them to make false, misleading, and highly controversial statements about their products. It was on this basis that plaintiffs sought a preliminary injunction.

Proposition 65 requires the Governor of California to publish a list of chemicals known to the state to cause cancer. Proposition 65 further requires persons doing business with chemicals on this list to provide a “clear and reasonable warning.” Glyphosate was placed on this list on July 7, 2017, after the International Agency for Research on Cancer (IRAC) classified the chemical as “probably carcinogenic to humans.” However, the court noted that other organizations, including the EPA and agencies within the World Health Organization, have found no evidence indicating that glyphosate causes cancer.

Court’s Grant of an Injunction

To obtain a preliminary injunction, the moving party must show the following: (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.

The court noted that plaintiffs have not shown a likelihood of success on the merits of the claim that the listing of glyphosate violates the First Amendment, because California’s listing of chemicals it purportedly knows to cause cancer does not compel private speech; only the July 2018 deadline to provide warnings compels speech. The court also determined that plaintiffs did not show a likelihood of irreparable harm if the court should fail to enjoin the listing of glyphosate; however, plaintiffs might suffer under the warning requirements of Proposition 65. The court denied a preliminary injunction based on plaintiffs’ claim that the glyphosate listing violates the First Amendment.

The court considered the plaintiffs’ claim that the warning requirement violates the First Amendment under the commercial speech doctrine, finding that where the state seeks to compel businesses to provide cancer warnings, the warnings must be factually accurate and not misleading. The court found that the warning requirement would be misleading to the ordinary consumer, who “would not understand that a substance is ‘known to cause cancer’ where only one health organization had found the substance in question causes cancer and virtually all other government agencies and health organizations that have reviewed studies on the chemical had found there was no evidence it caused cancer.” Thus, the court agreed that plaintiffs established a likelihood of success on the merits of their claim that the warning requirement violates their First Amendment rights.

The court also found that as for the plaintiffs’ claim that the warning requirement violates the First Amendment, the plaintiffs had established that they will likely suffer irreparable harm if the warning requirement is not enjoined as to glyphosate. Further, while the court recognized that the state has a significant interest in protecting its citizens and informing them of possible risks, “the Ninth Circuit has consistently ‘recognized the significant public interest in upholding First Amendment principles.’” However, recognizing that “[p]roviding misleading or false labels to consumers also undermines California’s interest In accurately informing its citizens of health risks at the expense of plaintiffs’ First Amendment rights,” the court determined the balance of equities and public interest weigh in favor of enjoining Proposition 65’s warning requirement for glyphosate.

The court granted the plaintiffs’ request to enjoin Proposition 65’s warning requirement for glyphosate as plaintiffs showed likelihood of success on the merits of the First Amendment claim, are likely to suffer irreparable harm without an injunction, and the balance of equities and public interest weigh in favor of the injunction. Plaintiffs’ motion for a preliminary injunction enjoining defendants from listing glyphosate as a chemical known to the State of California to cause cancer was denied.