Commentary by Lawrence Ebner, ALF Vice President & General Counsel
OEHHA—the laughable acronym for the California agency responsible for requiring countless businesses to post ubiquitous Proposition 65 warning signs about hundreds of chemicals found in everyday products—has suffered a major defeat in the 9th Circuit. A panel held 2 to 1 that requiring businesses to provide a cancer warning about glyphosate (the active ingredient in Roundup herbicide)—a warning that is neither “purely factual” nor “uncontroversial”—is unconstitutional because it violates First Amendment protections against compelled commercial speech.
It’s also a victory for sound science: The court emphasized the scientific community’s consensus that glyphosate does not cause cancer in humans. This includes the US Environmental Protection Agency (EPA), which has exhaustively studied glyphosate and repeatedly and unequivocally concluded that this beneficial chemical’s proper use does not pose a human cancer risk. EPA even has warned glyphosate producers that placing a Proposition 65 cancer warning on its labeling would be false and misleading and a violation of federal law. The court rejected OEHHA’s attempt to use businesses as “billboard” for advertising that agency’s own highly disputed views: “Compelling sellers 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.” The court further explained that “commandeering speech may seem expedient,” but “the fact that science is evolving is all the more reason to provide robust First Amendment protections.”
Proposition 65, as administered by California’s Office of Environmental Health Hazard Assessment (OEHHA), has morphed into a notorious “over-warning” statute. Warnings that actually matter are obscured by a blizzard of warnings that do not. And the latter help to fuel both the personal-injury contingency-fee bar and self-appointed Proposition 65 “bounty hunters.” The Ninth Circuit should be commended for restoring a measure of sanity to Proposition 65, at least in the case of glyphosate.
