Petition for Writ of Certiorari — Council for Education and Research on Toxics, Petitioner v. California Chamber of Commerce
Supreme Court briefJan 24, 2023
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APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Opinion of the United States Court of Appeals for
the Ninth Circuit Affirming Preliminary
Injunction (March 17, 2022)............................... 1a
Order of the United States Court of Appeals for
the Ninth Circuit Granting Motion to Stay
Preliminary Injunction Pending Appeal
(May 27, 2021) .................................................. 27a
Dissenting Opinion of Justice Forrest
(May 27, 2021) .................................................. 31a
Order of the United States District Court for the
Eastern District of California Granting
Preliminary Injunction (Signed March 29,
2021; Filed March 30, 2021) ............................ 34a
REHEARING ORDER
Order of the United States Court of Appeals for
the Ninth Circuit Denying Petition for
Rehearing (October 26, 2022) .......................... 78a
Dissenting Statement of Judge Berzon,
with Judges Wardlaw, Watford, Koh, and
Sanchez Joining ................................................ 80a
App.1a
OPINION OF THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
AFFIRMING PRELIMINARY INJUNCTION
(MARCH 17, 2022)
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
CALIFORNIA CHAMBER OF COMMERCE,
Plaintiff-Appellee,
v.
COUNCIL FOR EDUCATION AND RESEARCH ON
TOXICS, A CALIFORNIA PUBLIC BENEFIT CORPORATION,
Intervenor-DefendantAppellant.
________________________
No. 21-15745
D.C. No. 2:19-cv-02019- KJM-JDP
Appeal from the United States District Court for the
Eastern District of California Kimberly J. Mueller,
Chief District Judge, Presiding
Before: Ronald M. GOULD, Mark J. BENNETT,
and Ryan D. NELSON, Circuit Judges.
App.2a
OPINION
BENNETT, Circuit Judge:
California Chamber of Commerce (“CalChamber”)
filed suit for declaratory and injunctive relief against
the Attorney General of California, seeking to halt
acrylamide litigation brought under California’s Safe
Drinking Water and Toxic Enforcement Act of 1986,
better known as Proposition 65 or Prop. 65.1 CalChamber argued that Prop. 65’s warning requirement
violates the First Amendment of the U.S. Constitution
on its face and as applied to acrylamide in food
products. The district court granted CalChamber’s
motion for a preliminary injunction, prohibiting “the
Attorney General and his officers, employees, or
agents, and all those in privity or acting in concert
with those entities or individuals, including private
enforcers” from filing or prosecuting “new lawsuit[s] to
enforce the Proposition 65 warning requirement for
cancer as applied to acrylamide in food and beverage
products.” Council for Education and Research on
Toxics (“CERT”) intervened as a defendant2 and is the
sole appellant challenging the preliminary injunction.
1 In its First Amended complaint, CalChamber named only the
Attorney General as a defendant and sought to “enjoin [the
Attorney General] and those in privity with and acting in concert
with [him] from enforcing in the future a requirement to provide
a false, misleading, and highly controversial cancer warning for
food and beverage products . . . that contain the chemical acrylamide.” CalChamber claimed that those in privity and acting in
concert with the Attorney General included “private enforcers of
Proposition 65 under Cal. Health & Safety Code § 25249.7(d).”
2 CERT moved to intervene nine days after the lawsuit was filed.
Both CalChamber and the Attorney General filed statements of
non-opposition.
App.3a
We have jurisdiction under 28 U.S.C. § 1292(a)(1), and
we affirm.3
I.
Facts and Procedural Background
Prop. 65 provides that “[n]o person in the course
of doing business shall knowingly and intentionally
expose any individual to a chemical known to the state
to cause cancer . . . without first giving clear and
reasonable warning to such individual, except as
provided in Section 25249.10.” Cal. Health & Safety
Code § 25249.6. One exception under Section 25249.10
applies to those who “can show that the exposure
poses no significant risk assuming lifetime exposure
at the level in question for substances known to the
state to cause cancer.” Id. § 25249.10(c). This is known
as the “No Significant Risk Level.” See Nat’l Ass’n of
Wheat Growers v. Becerra, 468 F. Supp. 3d 1247, 1254
(E.D. Cal. 2020).
A chemical is “known to the state to cause cancer”
if it meets one of three statutory criteria: (1) the state’s
qualified experts believe “it has been clearly shown
through scientifically valid testing according to generally accepted principles to cause cancer”; (2) “a body
considered to be authoritative by such experts has
formally identified it as causing cancer”; or (3) “an
agency of the state or federal government has formally
required it to be labeled or identified as causing
cancer.” Cal. Health & Safety Code § 25249.8(b). The
California Office of Environmental Health Hazard
3 Noerr-Pennington immunity is at issue in our concurrently
filed opinion in B&G Foods North America, Inc. v. Kim Embry,
No. 20 16971. Though CERT raised Noerr-Pennington immunity
below, it abandoned that argument on appeal.
App.4a
Assessment (“OEHHA”) “is the lead agency designated
by the Governor to implement and enforce Proposition
65.” Cal. Chamber of Com. v. Brown, 126 Cal. Rptr. 3d
214, 219 n.5 (Ct. App. 2011). In its initially published
list of chemicals known to cause cancer, OEHHA “listed
only chemicals that had been identified as carcinogens
. . . based on human epidemiological studies. It did not
include chemicals identified as carcinogens . . . based
on animal studies.” Id. at 219 (citation omitted). Today,
a “chemical agent must be listed even if it is known to
be carcinogenic . . . only in animals.” Am. Chemistry
Council v. Off. of Envt’l Health Hazard Assessment,
270 Cal. Rptr. 3d 379, 402 (Ct. App. 2020).
OEHHA’s regulations provide that a cancer warning for foods is “clear and reasonable” if it states:
“WARNING: Consuming this product can expose you
to [name of chemical], which is known to the State of
California to cause cancer. For more information go to
www.P65Warnings.ca.gov/food.” See Cal. Code Regs.
tit. 27, § 25607.2(a)(1), (2). This is known as the “safe
harbor” warning. A party that fails to provide such a
warning or otherwise establish an exception may be
enjoined, Cal. Health & Safety Code § 25249.7(a), and
“is liable for a civil penalty not to exceed two thousand
five hundred dollars ($2,500) per day for each violation,”
id. § 25249.7(b)(1).
Prop. 65 enforcement actions “may be brought by
the Attorney General in the name of the people of the
State of California, by a district attorney,” by a city
attorney or city prosecutor, or “by a person in the
public interest.” Id. § 25249.7(c), (d). Before suing, the
person acting in the public interest must provide a
sixty-day notice of the alleged violation to the Attorney
General, other local prosecutors with jurisdiction, and
App.5a
the alleged violator. Id. § 25249.7(d)(1). The private
enforcer can only bring suit if “[n]either the Attorney
General, a district attorney, a city attorney, nor a
prosecutor has commenced and is diligently prosecuting
an action against the violation.” Id. § 25249.7(d)(2).
OEHHA added acrylamide to the Prop. 65 list in
1990 “because studies showed it produced cancer in
laboratory rats and mice.”4 OEHHA, Acrylamide,
https://oehha.ca.gov/
proposition-65/generalinfo/acrylamide (last visited Mar. 3, 2022). The EPA
found that acrylamide was a “likely” human carcinogen,
and the International Agency for Research on Cancer
classified it as “probably carcinogenic to humans.”
According to the FDA, acrylamide “is a chemical that
can form in some foods during high-temperature cooking
processes, such as frying, roasting, and baking” and
was first detected in foods in 2002. But the National
Cancer Institute stated that “a large number of epidemiologic studies . . . have found no consistent evidence
that dietary acrylamide exposure is associated with
the risk of any type of cancer.” The American Cancer
Society stated that studies “suggest that dietary acrylamide isn’t likely to be related to risk for most
common types of cancer.” And the FDA has stated that
“warning labels based on the presence of acrylamide
in food might be misleading.” Between 2015 and
October 2020, private enforcers have sent almost 1,000
notices of alleged acrylamide violations to the Attorney
General.
CalChamber is a nonprofit business association
with over 13,000 members, many of whom sell or
4 Toxicological studies have shown that tumors are observed in
rodents only when they are exposed to acrylamide at approximately
500 times the average daily amount consumed by Americans.
App.6a
produce food products that contain acrylamide. It filed
its complaint to vindicate its members’ First Amendment right to not be compelled to place false and misleading acrylamide warnings on their food products.
CalChamber’s preliminary injunction motion sought to
prohibit parties from “filing and/or prosecuting new
lawsuits to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and
beverage products.” CalChamber submitted expert declarations stating that there is no consistent or reliable
evidence that acrylamide increases the risk of any
type of cancer in humans, that the toxicological studies
related to experimental animals are not relevant to
humans at real-world levels of exposure, and that
California consumers understood Prop. 65’s safe harbor
warning “to convey the message that eating [food with
acrylamide] increases their risk of getting cancer.”
In opposition, the Attorney General submitted a
declaration from an expert who stated that evidence
shows that acrylamide is a human carcinogen.
Intervenor CERT also opposed the motion, arguing an
injunction would impose an unconstitutional prior
restraint on its First Amendment rights.5
The district court granted the preliminary injunction. Under the injunction:
While this action is pending and until a
further order of this court, no person may file
or prosecute a new lawsuit to enforce the
Proposition 65 warning requirement for
cancer as applied to acrylamide in food and
5 Nothing in any of CERT’s district court filings asserted or
suggested that CERT was asserting the rights of any other
private enforcers.
App.7a
beverage products. This injunction applies to
the requirement that any “person in the
course of doing business” provide a “clear
and reasonable warning” for cancer before
“expos[ing] any individual to” acrylamide in
food and beverage products under California
Health & Safety Code § 25249.6. It applies to
the Attorney General and his officers, employees, or agents, and all those in privity or
acting in concert with those entities or
individuals, including private enforcers under
section 25249.7(d) of the California Health
and Safety Code.
This order does not alter any existing consent
decrees, settlements, or other agreements
related to Proposition 65 warning requirements.
Cal. Chamber of Com. v. Becerra, 529 F. Supp. 3d 1099,
1123 (E.D. Cal. 2021) (alteration in original). The
district court found that CalChamber was likely to
succeed on the merits because neither the State nor
CERT had shown that the Prop. 65 cancer warning for
acrylamide in food is “purely factual and uncontroversial.” The district court also rejected CERT’s prior
restraint argument.
CERT appealed the preliminary injunction order,
but the Attorney General did not. A divided motions
panel of this court6 granted in part CERT’s motion for
6 Dissenting, Judge Forrest stated that CERT did not contend
that it intended to file any enforcement lawsuits, that CERT had
filed no enforcement suits since CalChamber filed the litigation,
and that CERT could still send demand letters. Judge Forrest
believed CalChamber “raised serious questions regarding whether
App.8a
an emergency stay of the preliminary injunction pending
appeal. The majority found that “[e]ven if a court
could enjoin lawsuits that infringe on a defendant’s
established First Amendment right against compelled
speech, no court has made a final determination that
a Proposition 65 warning is, in fact, unconstitutional
with respect to acrylamide exposure.” The motions
panel also stated that the “breadth of the injunction”—prohibiting Prop. 65 lawsuits “with regard to
acrylamide exposure by any private actor, including
those who are not parties to the underlying action”—
”exacerbates the concerns underlying the prior restraint
doctrine.” The motions panel stayed the preliminary
injunction only to the extent it barred private enforcers,
including CERT, from filing or prosecuting Prop. 65
lawsuits. Another motions panel later denied CalChamber’s motion to dismiss CERT’s appeal for lack
of standing.
II. Standard of Review
This court reviews “the district court’s decision to
grant or deny a preliminary injunction for abuse of
discretion. . . . The district court’s interpretation of the
underlying legal principles, however, is subject to de
novo review and a district court abuses its discretion
when it makes an error of law.” Sw. Voter Registration
Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.
2003) (en banc) (per curiam) (citation omitted).
“A district court abuses its discretion if it rests its
decision ‘on an erroneous legal standard or on clearly
erroneous factual findings.’” Am. Beverage Ass’n v. City
the warning required by Proposition 65 as [it] relates to acrylamide is permissible compelled commercial speech.”
App.9a
& County of San Francisco, 916 F.3d 749, 754 (9th Cir.
2019) (en banc) (quoting United States v. Schiff, 379
F.3d 621, 625 (9th Cir. 2004)). “A district court’s
decision is based on an erroneous legal standard if: ‘(1)
the court did not employ the appropriate legal standards
that govern the issuance of a preliminary injunction;
or (2) in applying the appropriate standards, the court
misapprehended the law with respect to the underlying
issues in the litigation.’” Negrete v. Allianz Life Ins.
Co. of N. Am., 523 F.3d 1091, 1096 (9th Cir. 2008)
(quoting Clear Channel Outdoor Inc. v. City of Los
Angeles, 340 F.3d 810, 813 (9th Cir. 2003), abrogated
on other grounds by Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7 (2008)).
“In the context of a trial court’s factual findings,
as applied to legal rules, to determine whether a
district court has abused its discretion, the first
step . . . is to determine de novo whether the trial
court identified the correct legal rule to apply to the
relief requested.” Enyart v. Nat’l Conf. of Bar Exam’rs,
Inc., 630 F.3d 1153, 1159 (9th Cir. 2011) (cleaned up).
“If the trial court identified the correct legal rule, the
second step is to determine whether the trial court’s
application of the correct legal standard was (1)
illogical, (2) implausible, or (3) without support in
inferences that may be drawn from the facts in the
record.” Id. (cleaned up).
“We review the scope of an injunction for abuse of
discretion.” Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., 886 F.3d 803, 823 (9th Cir. 2018).
App.10a
III. Discussion
A. Standing
We first address the jurisdictional challenge raised
by CalChamber. Notwithstanding that CERT intervened, that CalChamber sought to enjoin CERT, and
that the preliminary injunction obtained by CalChamber
does enjoin CERT, CalChamber argues that CERT
lacks standing to appeal. CalChamber claims that the
injunction might not affect CERT because CERT “does
not have any pending 60 day notices concerning acrylamide in food on which it could file suit.”7 CalChamber
therefore contends that CERT “does not have Article
III standing and its appeal cannot proceed.” CERT
argues that because the district court enjoined “CERT
and all other private enforcers from filing Proposition
65 cases regarding acrylamide in food, CERT ha[s]
standing to appeal.” We agree with CERT.
“[T]o appeal a decision that the primary party does
not challenge, an intervenor must independently demonstrate standing.” Va. House of Delegates v. BethuneHill, 139 S. Ct. 1945, 1951 (2019). “Standing under
Article III of the Constitution requires that an injury
be concrete, particularized, and actual or imminent;
fairly traceable to the challenged action; and redressable
by a favorable ruling.” Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 149 (2010). The Supreme Court
7 CalChamber also argues that it would be absurd for the Attorney
General and other elected officials to not be able to enforce Prop.
65 while private enforcers could. But this result would flow from
the Attorney General’s decision not to appeal, not from any lack
of injury to CERT. Moreover, it was CalChamber that sought to
enjoin both the Attorney General and private enforcers like
CERT.
App.11a
has “repeatedly reiterated that threatened injury
must be certainly impending to constitute injury in
fact, and that allegations of possible future injury are
not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S.
398, 409 (2013) (cleaned up). As the Court held in
TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021),
“Congress may not authorize plaintiffs who have not
suffered concrete harms to sue in federal court simply
to enforce general compliance with regulatory law.”
Id. at 2207 n.3. The same principle applies to an
intervenor seeking to appeal. Va. House of Delegates,
139 S. Ct. at 1950-51.
We first note that CERT recently filed a Prop. 65
enforcement action against manufacturers and retailers
of air fryers, alleging air fryers “generate extremely
high levels of acrylamide to which Californians are
exposed.” CERT does not contend that air fryers are
“food and beverage products,” and stated at oral argument that its litigation against air fryer manufacturers
would not have been barred by the injunction. CERT
acknowledged that the defendants in that litigation,
however, might contend that because air fryers create
acrylamide in foods, the litigation would have been
barred by the preliminary injunction, absent the stay.
CalChamber stated at oral argument that the pending
case faces the question whether air fryers are food and
beverage products, and that the defendants in that
case might argue that they are.
CERT did not contend below that it specifically
intended to file any Prop. 65 lawsuits or pre-litigation
notices about acrylamide in food or beverage products.
Nor did it make such a claim in opposition to the
motion to dismiss the appeal for lack of standing.
Nonetheless, we look to CERT’s long history of bringing
App.12a
suits against manufacturers of food and beverage
products, CERT’s statement that it has “devote[d] [its]
efforts to initiating new Proposition 65 matters regarding acrylamide,” and CERT’s very recent litigation
against air fryers, as significant evidence of CERT’s
concrete interest in bringing Prop. 65 litigation related
to acrylamide in food and beverage products. We also
note that CalChamber has not cited, nor have we found,
any case in which an enjoined party was denied, on
standing grounds, the right to appeal the injunction.
We hold that CERT suffered “an invasion of a
legally protected interest,” Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992), when the district court
enjoined it from filing Prop. 65 lawsuits as to acrylamide in food and beverage products. We find that
CERT has suffered a concrete, particularized, and actual
injury. Cf. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The
loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable
injury.”). The injury is directly traceable to the preliminary injunction and redressable by a reversal of
that injunction. We thus conclude that CERT has
standing, and we proceed to the merits of CalChamber’s
and CERT’s arguments on appeal.
B. Preliminary Injunction
For a court to grant a preliminary injunction, a
plaintiff “must establish [1] that he is likely to succeed
on the merits, [2] that he is likely to suffer irreparable
harm in the absence of preliminary relief, [3] that the
balance of equities tips in his favor, and [4] that an
injunction is in the public interest.” Winter, 555 U.S.
at 20.
App.13a
1. Likelihood of Success on the Merits
a. Compelled Speech
The district court applied the three-factor test
from Zauderer v. Office of Disciplinary Counsel, 471
U.S. 626 (1985), to decide whether “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.” The district court’s
first two factors combine the “three inquiries” that
comprise “[t]he Zauderer test, as applied in [National
Institute of Family & Life Advocates v. Becerra
(“NIFLA”), 138 S. Ct. 2361 (2018)]”: “whether the notice
is (1) purely factual, noncontroversial, and (3) not
unjustified or unduly burdensome.” Am. Beverage, 916
F.3d at 756.8 In CTIA-The Wireless Ass’n v. City of
Berkeley (“CTIA-II”), 928 F.3d 832 (9th Cir. 2019), we
joined our sister circuits in holding that “the Zauderer
exception for compelled speech applies even in circumstances where the disclosure does not protect against
deceptive speech.” Id. at 843. We held that “the governmental interest in furthering public health and
safety is sufficient under Zauderer so long as it is
substantial.” Id. at 844. The third factor considered by
the district court here aligns with our holding in
CTIA-II. The district court thus initially used the
correct framework for determining whether Prop. 65’s
warning requirement was a constitutionally permissible
compelled disclosure.
8 The inquiries or criteria need not be addressed in any
particular order. Am. Beverage, 916 F.3d at 756.
App.14a
The district court then found that the Prop. 65
acrylamide warning did not pass constitutional muster.
“Courts asked to issue preliminary injunctions based
on First Amendment grounds face an inherent tension:
the moving party bears the burden of showing likely
success on the merits . . . and yet within that merits
determination the government bears the burden of
justifying its speech-restrictive law.” Thalheimer v.
City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011),
overruled on other grounds by Bd. of Trs. of Glazing
Health & Welfare Tr. v. Chambers, 941 F.3d 1195,
1199 (9th Cir. 2019) (en banc). “Therefore, in the First
Amendment context, the moving party bears the
initial burden of making a colorable claim that its
First Amendment rights have been infringed, or are
threatened with infringement, at which point the
burden shifts to the government to justify the
restriction” on speech. Id. at 1116.
CalChamber bore the initial burden to show a
colorable claim. As the district court found, “[t]he parties
agree[d] Proposition 65 compels commercial speech.”
Thus, the court shifted its inquiry to assessing whether
California could justify the compelled disclosure under
Zauderer. The district court found that “[1] the State
has not shown that the safe-harbor acrylamide warning is purely factual and uncontroversial, and [2]
Proposition 65’s enforcement system can impose a
heavy litigation burden on those who use alternative
warnings.”9 The court found that “the warning implies
9 As noted, the safe-harbor warning reads: “Consuming this
product can expose you to [acrylamide], which is . . . known to
the State of California to cause cancer. For more information go
to www.P65Warnings.ca.gov/food.” Cal. Code Regs. tit. 27, § 25607.2
(a)(2).
App.15a
incorrectly that acrylamide is an additive or ingredient,”
and “is likely misleading.” The court also referenced
the consumer survey submitted by CalChamber that
shows how those “who read the safe harbor warning
will probably believe that eating the food increases
their personal risk of cancer.” The court acknowledged
that some studies would “support such an inference,”
but also noted “dozens of epidemiological studies have
failed to tie human cancer to a diet of food containing
acrylamide.” Thus, it found “the safe harbor warning
is controversial because it elevates one side of a
legitimately unresolved scientific debate about whether
eating foods and drinks containing acrylamide increases
the risk of cancer.”
The record supports the district court’s findings.
First, the district court found that the safe harbor
warning is controversial because of the scientific debate
over whether acrylamide in food causes cancer in
humans. In 2019, the American Cancer Society stated
that “dietary acrylamide isn’t likely to be related to
risk for most common types of cancer.” According to the
National Cancer Institute, while “[s]tudies in rodent
models have found that acrylamide exposure increases
the risk for several types of cancer[,] . . . 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.” One
epidemiologist who reviewed 56 studies concluded
that “there is no consistent or reliable evidence to
support a finding that dietary exposure to acrylamide
increases the risk of any type of cancer in humans.” In
her publication, the researcher noted that the “epidemiologic studies . . . have failed to detect an increased
risk of cancer, and they raise serious doubt regarding
App.16a
the validity of extrapolating from rodent studies suggestive of multiorgan effects to humans.” These opinions weigh against the conclusions of three organizations: the International Agency for Research on
Cancer classifies acrylamide as “probably carcinogenic
to humans,” the U.S. National Toxicology Program
classifies acrylamide as “reasonably anticipated to be
a human carcinogen,” and the EPA classifies acrylamide as “likely to be carcinogenic to humans.” Given
this robust disagreement by reputable scientific sources,
the court did not abuse its discretion in concluding that
the warning is controversial.10
The court similarly did not abuse its discretion in
finding the warning is misleading. Scientific debate
aside, Prop. 65’s meaning of the word “known” is not
conveyed in the warning.11 The district court stated:
“Statements are not necessarily factual and uncontroversial just because they are technically true.” See
CTIA-II, 928 F.3d at 847 (“[A] statement may be
literally true but nonetheless misleading and, in that
sense, untrue.”). Under Prop. 65, a “known” carcinogen carries a complex legal meaning that consumers
would not glean from the warning without context.12
10 We do not try to offer a general definition for “controversial”
in the Zauderer context. However controversial is defined, the
acrylamide Prop. 65 warning easily meets the definition because
of the scientific debate.
11 As noted above, the word “known” has a specialized meaning
under Prop. 65, see Cal. Health & Safety Code § 25249.8(b), and
OEHHA added acrylamide to the Prop. 65 list in 1990 “because
studies showed it produced cancer in laboratory rats and mice.”
12 This interpretation of the “factual” requirement can also be
understood as a corollary of the threshold requirement stated in
Zauderer. While the First Amendment allows states and the
App.17a
Thus, use of the word “known” is misleading—as the
FDA acknowledged the warning might be. Even the
State of California has stipulated that it “does not
know that acrylamide causes cancer in humans, and
is not required to make any finding to that effect in
order to list the chemical under Proposition 65.” As
the consumer survey showed, when 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.” But acrylamide “must be listed [as known
to the state to cause cancer] even [though] it is known
to be carcinogenic . . . only in animals.” Am. Chemistry
Council, 270 Cal. Rptr. 3d at 402. 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. The district court did
not abuse its discretion when it concluded the warning
is misleading.
Finally, the record supports the district court’s
finding that Prop. 65’s enforcement regime creates a
heavy litigation burden on manufacturers who use
alternative warnings. The district court agreed with
CalChamber that “only the safe harbor warning is
actually useable in practice.” The court found that
Prop. 65 “does not permit businesses to add information
to the required warning at their discretion, and thus
federal government to bar others from disseminating false,
deceptive, or misleading commercial speech, 471 U.S. at 638, the
First Amendment also bars the government from compelling
others to disseminate false, deceptive, or misleading commercial
disclosures.
App.18a
prevents them from explaining their views on the true
dangers of acrylamide in food.” Upon receipt of a
notice of violation, CalChamber argues, a business
must “communicate to consumers a disparaging health
warning about food containing acrylamide that is
unsupported by science, or face the significant risk of
an enforcement action under Proposition 65.” The
former damages their “reputation and goodwill” with
misleading information, and the latter bears a risk of
“civil penalties of up to $2,500 per violation per day.”
If the business chooses to defend itself in the action, it
bears the burden of proof to show the acrylamide
levels in their products have a low enough risk of
causing cancer that they do not need a warning. See
Cal. Health & Safety Code § 25249.10(c) (requiring
defendants to prove that the exposure to acrylamide
“poses no significant risk assuming lifetime exposure
at the level in question”). Proving the acrylamide level
is lower than the No Significant Risk Level requires
expensive testing and costly expert testimony if the
case proceeds to trial. “[S]maller businesses . . . often
cannot afford” these costs and “have decided to provide
a Proposition 65 cancer warning for their acrylamidecontaining food products, even though they believe
that such a warning is unfounded, to avoid the risk of
Proposition 65 litigation.” Thus, in context, the compelled disclosure appears unduly burdensome, and the
district court did not abuse its discretion in so finding.
Our circuit has established a clear legal framework
for analyzing the constitutionality of a compelled commercial disclosure requirement, which the district
court dutifully followed. Because California and CERT
did not meet their burden to show the warning requirement was lawful under Zauderer, the district court
App.19a
did not abuse its discretion when it concluded that
CalChamber was likely to succeed on the merits of its
First Amendment claim.
The district court assumed without deciding that
it was also necessary to apply the heightened standard
of review under Central Hudson Gas & Electric Corp.
v. Public Service Commission, 447 U.S. 557 (1980).13
Theoretically, even if a compelled disclosure failed the
Zauderer test because, for example, it was controversial,
the government could get a “second bite at the apple”
by showing that even if controversial, the compelled
speech passed Central Hudson’s intermediate scrutiny
hurdle. The State made this argument below. But
CERT has not made this argument on appeal, nor has
CERT even cited Zauderer or Central Hudson in its
briefs. Thus, we need not reach this argument. Indep.
Towers of Wash. v. Washington, 350 F.3d 925, 929-30
(9th Cir. 2003).14
13 At least one other district court has done the same, finding
our precedent unclear on whether applying the heightened analysis was necessary. See Wheat Growers, 468 F. Supp. 3d at 1257,
1264.
14 We note, though, that in CTIA-II we stated: “Five years after
Central Hudson, the Court held that Central Hudson’s intermediate scrutiny test does not apply to compelled, as distinct
from restricted or prohibited, commercial speech.” 928 F.3d at
842. We also note, however, that no court appears to have ever
directly held that the government can never compel factually
accurate but “controversial” speech, no matter the government
interest, and no matter how compelling its reasons. We leave
that question for another day.
App.20a
b. Prior Restraint
CERT (which, as noted, does not even discuss
Zauderer) argues the injunction is a prior restraint
that violates its First Amendment right to petition.
The district court found the “illegal objective” of any
Prop. 65 lawsuit prevented CERT from making a
successful prior restraint claim.15 Though the prior
15restraint doctrine does apply to enjoined lawsuits,
we conclude that the district court’s finding at the
preliminary injunction stage that Prop. 65 acrylamide
in food lawsuits are likely unconstitutional prevents
CERT from claiming the doctrine’s protection.
The Supreme Court has held that “enjoining a
lawsuit could be characterized as a prior restraint.”
BE & K Constr. Co. v. NLRB, 536 U.S. 516, 530 (2002).
But courts may enjoin a lawsuit with “an objective
that is illegal” without violating the Petition Clause.
Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 737
n.5 (1983); see also Small v. Operative Plasterers’ and
Cement Masons’ Int’l Ass’n Loc. 200, 611 F.3d 483, 492
(9th Cir. 2010).16
15 In discussing “illegal objective,” the court referenced the
potential that CalChamber would succeed on the merits as
problematic for the petition clause claim because “private
enforcement actions targeting acrylamide would run head-on
into a constitutional prohibition.”
16 CERT argues that its Prop. 65 lawsuits may not be enjoined
because CERT is not “‘subjectively motivated by an unlawful
purpose,’ [BE & K Constr. Co., 536 U.S. at 531], so as to have an
‘illegal objective’ undeserving of First Amendment protection.”
But CalChamber need not allege or prove the subjective motive
of Prop. 65 private enforcers. Suits that have “an objective that
is illegal under federal law” may be enjoined without proving
App.21a
CERT 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 of CalChamber’s claim.
But CERT 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 CERT are distinguishable.
CERT cited a district court case that stated: “A
preliminary injunction is not ideal for resolving the
actual truth or falsity of Defendants’ speech,
particularly where the merits of the matter is already
pending in another court.” Gold Coast Search Partners
LLC v. Career Partners, Inc., No. 19-cv-03059-EMC,
2019 WL 4305540, at *5 (N.D. Cal. Sept. 11, 2019).
But that court found only that enjoining the defendants
from “stating or claiming that Plaintiffs are prohibited
from conducting their business or that they are violating any agreement with Defendants” or “stating or
implying that Plaintiffs are bound by the Employment
Agreement” would be an improper prior restraint on
speech. Id. at *4-5. No similar speech is barred here—
only lawsuits.
CERT also cites Balboa Island Village Inn, Inc. v.
Lemen, 156 P.3d 339 (Cal. 2007), claiming the California Supreme Court “held that an injunction that
enjoins speech prior to a determination on the merits
is impermissible.” But the case had nothing to do with
enjoining prospective lawsuits “prior to a determination” on the First Amendment merits; it involved a
subjective intent. Bill Johnson’s, 461 U.S. at 737 n.5; Small, 611
F.3d at 492.
App.22a
bar and restaurant owner seeking to enjoin a neighbor
from interfering with its business by repeating
statements that a court had already found defamatory.
Id. at 341. The California Supreme Court ultimately
determined that the trial court’s permanent injunction was “overly broad, but that defendant’s right to
free speech would not be infringed by a properly limited
injunction prohibiting defendant from repeating statements about plaintiff that were determined at trial to
be defamatory.” Id.
CalChamber, on the other hand, offers examples
of preliminary injunctions against litigation to support
its position that enjoining future lawsuits does not constitute an unlawful prior restraint on CERT’s right to
petition. See County of Orange v. Air Cal., 799 F.2d 535,
537 (9th Cir. 1986); Wood v. Santa Barbara Chamber
of Com., Inc., 705 F.2d 1515, 1523 (9th Cir. 1983). The
district court also pointed to other contexts in which
federal courts enjoin prospective state court litigation.17
We agree with CalChamber and the district court.
The serious constitutional issue raised by CalChamber
gave the district court sufficient reason to enjoin Prop.
65 acrylamide litigation until the case was finally
decided on the merits. The court’s analysis of CalChamber’s First Amendment claim was an “adequate
determination that [such Prop. 65 acrylamide litigation]
is unprotected by the First Amendment.” Pittsburgh
Press Co. v. Pittsburgh Comm’n on Human Rels., 413
17 The district court cited cases as well as federal statutes, such
as the All Writs Act and the Anti-Injunction Act, which show that
enjoining prospective lawsuits does not per se violate the First
Amendment.
App.23a
U.S. 376, 390 (1973).18 Thus, we hold that the preliminary injunction against likely unconstitutional litigation is not an unconstitutional or otherwise impermissible prior restraint.
2. Remaining Preliminary Injunction
Factors
We conclude there was no abuse of discretion in
the court’s analysis of the remaining preliminary
injunction factors. “Irreparable harm is relatively easy
to establish in a First Amendment case.” CTIA-II, 928
F.3d at 851. The plaintiff “need only demonstrate the
existence of a colorable First Amendment claim.” Brown
v. Cal. Dep’t of Transp., 321 F.3d 1217, 1225 (9th Cir.
2003) (cleaned up). As we held above, the district court
correctly found that CalChamber did so.
The district court reviewed the final two factors
of the preliminary injunction test together, weighing
the State’s and private enforcers’ interest in enforcing
Prop. 65 against CalChamber’s members’ First Amendment rights. “[I]t is always in the public interest to
prevent the violation of a party’s constitutional rights.”
Am. Beverage, 916 F.3d at 758 (quoting Melendres v.
Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). The
district court noted that the “injunction requested
here is also quite narrow,” allowing “CERT and other
private enforcers [to] send demand letters and notices
of violations,” “litigate existing claims and pursue
appeals,” “pursue public relations campaigns,” “fund
18 The Court in Pittsburgh Press did not define the parameters
of an “adequate determination.” 413 U.S. at 390. Such adequacy
would, of course, turn on the law and facts in individual cases.
App.24a
research,” and “buy advertisements.”19 Though we do
not agree with the “quite narrow” description, the
scope of the injunction speaks for itself, and is not
impermissible.
For these reasons, the court found that the
balance of equities tipped in CalChamber’s favor, and
that the injunction would be in the public interest. These
findings were not an abuse of discretion, especially as
this court has “consistently recognized the significant
public interest in upholding First Amendment principles.” Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014)
(quoting Sammartano v. First Jud. Dist. Ct., 303 F.3d
959, 974 (9th Cir. 2002), abrogated on other grounds
by Winter, 555 U.S. 7).
C. Scope of the Injunction
CERT argues for the first time in its reply brief
that the injunction was overly broad because CERT
and the Attorney General are not in privity with one
another. While we are unsure if we understand
CERT’s argument, which is forfeited because it is
raised for the first time in the reply brief, we have
“discretion to review an issue not raised by appellant . . . when it is raised in the appellee’s brief.” In re
Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th Cir.
1991). Given that CalChamber argues that because
the Attorney General and private enforcers bring Prop.
65 claims in the public interest, private enforcers are
“in privity” with one another and with the Attorney
19 CERT argued for the first time on appeal that the notices of
violations are effectively enjoined. This argument is waived. See
In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th
Cir. 2010).
App.25a
General, we exercise our discretion to reach only
whether the injunction is overly broad as to CERT.20
Federal Rule of Civil Procedure 65(d)(2) allows
district courts to enjoin not just the parties and their
affiliates, but also others who are “in active concert or
participation” with them. The Supreme Court has
interpreted this language to allow injunctions to bind
not only defendants but also people “identified with
them in interest, in ‘privity’ with them, represented
by them or subject to their control.” Golden State
Bottling Co. v. NLRB, 414 U.S. 168, 179 (1973)
(quoting Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14
(1945)). CalChamber argues that this group includes
“private enforcers who are not parties to this action.”21
20 We do not reach whether the injunction here is overly broad
against other possible private enforcers. CERT intervened to
protect its own interests and did not purport to speak for other
private enforcers. Because CERT has not asserted the rights or
interests of anyone but itself, its standing is limited to its own
interests. We therefore discuss only whether the injunction was
overly broad as to CERT. We express no view on the merits of
whether the injunction was overbroad as it applies or purports to
apply to other private enforcers who were not named as
defendants and who did not intervene.
21 “In general, . . . privity involves a person so identified in
interest with another that he represents the same legal right.”
Zaragosa v. Craven, 202 P.2d 73, 75 (Cal. 1949) (en banc)
(quotation marks omitted). “Generally, to be held liable in
contempt, it is necessary that a non-party respondent must
either abet the defendant or must be legally identified with him.
Those not identified with a party, but in active concert or
participation with him, are bound only with actual notice.”
NLRB v. Sequoia Dist. Council of Carpenters, AFL-CIO, 568 F.2d
628, 633 (9th Cir. 1977) (cleaned up).
App.26a
Whether or not this is so, as an intervenordefendant, CERT is in a different position from other
private enforcers who are not parties to the case.
CERT stated in its motion to intervene that its
interests cannot be adequately represented by the
Attorney General because their interests are adverse.
CERT acknowledged that “as an intervenor, CERT
has all of the same rights and obligations as [those] of
a named defendant.” This includes the duty to be
bound by the district court’s injunction order. See
United States v. Oregon, 657 F.2d 1009, 1014 (9th Cir.
1981) (“Intervenors under Fed. R. Civ. P. 24(a)(2) . . .
enter the suit with the status of original parties and are
fully bound by all future court orders.”). We concluded
at the outset that CERT has standing to appeal the
injunction as a private enforcer, including because
CERT has filed acrylamide lawsuits in the past and
has discussed wanting to file them in the future. As
an intervenor under Fed. R. Civ. P. 24(a), CERT
brought itself into “active concert” and “participation”
with the Attorney General in the context of this
litigation. It would defy logic to now hold that the
injunction as applied to CERT as a private enforcer is
overly broad.
IV. Conclusion
For all these reasons, the district court did not
abuse its discretion in granting the preliminary
injunction.22
AFFIRMED.
22 We also find no abuse of discretion in the court’s evidentiary
hearing proceedings or its consideration of expert testimony.
App.27a
ORDER OF THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
GRANTING MOTION TO STAY PRELIMINARY
INJUNCTION PENDING APPEAL
(MAY 27, 2021)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
CALIFORNIA CHAMBER OF COMMERCE,
Plaintiff-Appellee,
v.
ROB BONTA,
Defendant,
and
COUNCIL FOR EDUCATION AND RESEARCH ON
TOXICS, A CALIFORNIA PUBLIC BENEFIT
CORPORATION,
Intervenor-DefendantAppellant.
________________________
No. 21-15745
D.C. No. 2:19-cv-02019-KJM-JDP
Eastern District of California, Sacramento
Before: PAEZ, BERZON, and FORREST,
Circuit Judges.
App.28a
Order by Judges PAEZ and BERZON; Dissent by
Judge FORREST
Appellant Council for Education and Research on
Toxics (“CERT”) appeals the district court’s March 29,
2021 preliminary injunction barring new lawsuits that
seek to enforce California’s Proposition 65 warning
requirement for acrylamide exposure. CERT moves
for an emergency stay of the preliminary injunction
pending appeal (Docket Entry No. 5).
In evaluating a motion for stay pending appeal
we consider four factors: “(1) whether the stay applicant
has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public
interest lies.” Nken v. Holder, 556 U.S. 418, 426 (2009)
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
Both parties advance First Amendment arguments
in this case. Even if a court could enjoin lawsuits that
infringe on a defendant’s established First Amendment
right against compelled speech, no court has made a
final determination that a Proposition 65 warning is,
in fact, unconstitutional with respect to acrylamide
exposure. Given the preliminary nature of the proceedings in the district court and the ordinary prohibition
on prior restraints of speech, CERT has made a
sufficient showing that it is likely to prevail on appeal.
See Pittsburgh Press Co. v. Human Rel. Comm’n, 413
U.S. 376, 390 (1973) (“The special vice of a prior restraint
is that communication will be suppressed . . . before
an adequate determination that it is unprotected by
the First Amendment.”). Additionally, the preliminary
injunction prohibits lawsuits brought under Proposition
App.29a
65 with regard to acrylamide exposure by any private
actor, including those who are not parties to the
underlying action. The breadth of the injunction
exacerbates the concerns underlying the prior restraint
doctrine and so the likelihood of success on the merits.
CERT is also sufficiently likely to succeed in
challenging the district court’s analysis of irreparable
harm on appeal. The Supreme Court has held that the
infringement of First Amendment rights “for even
minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373
(1976). But again, both sides claim First Amendment
injuries, and there is a serious question as to whether
appellee California Chamber of Commerce demonstrated
on behalf of its members the requisite irreparable
harm to warrant a preliminary injunction. In particular,
as the dissent notes, the record contains no indication
that CERT, the only party to this action that might
bring a private enforcement lawsuit, is likely to sue
any member of the Chamber in the near future. That
circumstance severely undercuts the California
Chamber of Commerce’s claims of irreparable harm
with regard to the only private enforcement actions
properly before us, and thereby increases CERT’s
likelihood of success on the merits of this appeal.
We therefore grant in part CERT’s emergency
motion to stay the district court’s March 29, 2021
preliminary injunction order. We stay the preliminary
injunction to the extent it bars any “private enforcer,”
including CERT, from “fil[ing] or prosecut[ing] a new
lawsuit to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and
beverage products.” This stay shall remain in effect
App.30a
during the pendency of this appeal or until further
order of this court.
The existing briefing schedule remains in effect.
The Clerk will place this matter on the next
available calendar.
App.31a
DISSENTING OPINION OF
JUSTICE FORREST
(MAY 27, 2021)
I disagree that CERT has met its burden in
seeking to stay the district court’s preliminary injunction, and I would deny the motion. It is the party seeking
a stay who has the burden to demonstrate that the
circumstances justify a stay. Nken, 556 U.S. at 43334. As the court notes, we consider four factors. Id. at
434. But we have emphasized the importance of the
applicant showing it will suffer irreparable harm,
holding that “stays must be denied to all petitioners
who d[o] not meet the applicable irreparable harm
threshold, regardless of their showing on the other
stay factors.” Leiva-Perez v. Holder, 640 F.3d 962, 965
(9th Cir. 2011) (per curiam).
The court relies on the Supreme Court’s decision
in Elrod that the infringement of First Amendment
rights “for even minimal periods of time, unquestionably
constitutes irreparable injury.” 427 U.S. at 373. Elrod
is distinguishable. In that case, it was “clear . . . that
First Amendment interests were either threatened or
in fact being impaired at the time relief was sought.”
Id. (emphasis added). Indeed, the Court concluded
that a First Amendment injury “was both threatened
and occurring at the time of respondents’ motion.” Id.
But here, the record is devoid of any evidence supporting
CERT’s conclusory assertion that the district court’s
preliminary injunction order threatened or impaired
its First Amendment right to petition for redress.
CERT does not contend that at the time it moved for
an emergency stay it intended to file any Proposition
App.32a
65 enforcement lawsuits. See generally CERT’s Emergency Stay Mot. at 18-19. Nor does it even 1 contend
it has such intention now. Instead, the evidence cuts
the other way—while 2 other private enforcers filed
multiple lawsuits during the approximately 18 months
3 between the California Chamber of Commerce filing
this litigation and the district 4 court’s preliminary
injunction order, see district court order (district court
dkt. # 114) 5 at 29:9-16, CERT filed no enforcement
suits during this period. And there is 6 indication that
CERT has filed very few Proposition 65 enforcement
actions over the 7 last 18 years. See Resp. to CERT’s
Emergency Stay Mot. at 15.
A party being prevented from doing something it
is unlikely to do is insufficient to demonstrate irreparable harm. See Nken, 556 U.S. at 434 (holding the
mere possibility of irreparable harm does not meet the
required standard). This is the thrust of CERT’s
evidence in this case.
And even if such a showing could demonstrate some
measure of irreparable harm, in my view the circumstances presented in this case still do not justify the
exercise of our discretion in granting a stay where
there are competing First Amendment interests at play.
Id. at 433 (“A stay is not a matter of right, even if
irreparable injury might otherwise result.”). It is not
at all clear how the prior restraint doctrine referenced
by the court applies to the First Amendment right to
petition, as opposed to the right to speak. This is of
particular importance because the preliminary injunction order allows parties seeking to enforce Proposition
65 to continue engaging in expressive conduct, such as
sending demand letters, and prohibits only the filing
of lawsuits. Additionally, the California Chamber of
App.33a
Commerce has raised serious questions regarding whether the warning required by Proposition 65 as relates
to acrylamide is permissible compelled commercial
speech. Both of these points undermine CERT’s likelihood of success on the merits. For these reasons, I
would deny CERT’s motion to stay the district court’s
preliminary injunction.
App.34a
ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN
DISTRICT OF CALIFORNIA GRANTING
PRELIMINARY INJUNCTION
(SIGNED MARCH 29, 2021;
FILED MARCH 30, 2021)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
________________________
CALIFORNIA CHAMBER OF COMMERCE,
Plaintiff,
v.
XAVIER BECERRA IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,
Defendant.
________________________
No. 2:19-cv-02019-KJM-EFB
Before: Kimberly J. MUELLER,
Chief United States District Judge.
The California Chamber of Commerce contends
California has compelled businesses to display misleading warnings about the dangers of acrylamide, a
carcinogen. It seeks a preliminary injunction barring
the California Attorney General and anyone else from
filing new lawsuits against businesses that do not
display the warning.
App.35a
The Council for Education and Research on Toxics,
or “CERT,” joins the State as a defendant in this case.
CERT is an intervening nonprofit organization that
often files lawsuits against businesses that do not
display warnings about acrylamide. CERT moves for
summary judgment against the Chamber of Commerce.
It argues its right to prosecute private enforcement
actions is protected by the First Amendment.
The court held a hearing by videoconference on
December 11, 2020. Trenton Norris and S. Zachary
Fayne appeared for the Chamber of Commerce. Joshua
Purtle and Harrison Pollak appeared for the State.
Raphael Metzger and Scott Brust appeared for CERT.
As explained in this order, the Chamber of Commerce’s
motion is granted, and CERT’s motion is denied. The
State has not shown that the cancer warnings it
requires are purely factual and uncontroversial. Nor
has it shown that Proposition 65 imposes no undue
burden on those who would provide a more carefully
worded warning. CERT, for its part, has not shown it
is entitled to judgment as a matter of law.
I.
Background
Acrylamide is a toxic chemical. It is produced
industrially for use in plastics, grouts, water treatment
products, and cosmetics. See, e.g., U.S. Food & Drug
Admin., “Acrylamide Questions and Answers” (Sept.
25, 2019), Norris Decl. Ex. E, ECF No. 95-7.1 It is also
found in cigarette smoke. Id. And in 2002, it was
1 https://www.fda.gov/food/chemicals/acrylamide-questions-andanswers, last visited Mar. 24, 2021. See also U.S. Food & Drug
Admin., “Survey Data on Acrylamide in Food” (Sept. 27, 2019),
https://www.fda.gov/food/chemicals/survey-data-acrylamidefood, last visited Mar. 24, 2021.
App.36a
detected in food. Maier Decl. at 16 ¶ 44, ECF No. 9524,2 Solomon Decl. ¶ 18, ECF No. 101-1.3
Although acrylamide was first detected in food in
2002, it has likely always been a part of many foods.
See Acrylamide Questions & Answers, supra. Sometimes it occurs naturally. Maier Decl. ¶ 44. Often,
however, it forms as a result of a reaction between sugars
and the amino acid asparagine, which naturally occur
in many foods. See Acrylamide Questions & Answers,
supra. Roasting, baking, frying, or otherwise cooking
food at a high temperature appears to cause acrylamide to form, whether at home or at industrial scale.
Id.; Solomon Decl. ¶ 18; Letter from Lester Crawford,
Deputy Comm’r, U.S. Food & Drug Admin. at 2 (July
14, 2003), Norris Decl. Ex. G, ECF No. 95-9.
Acrylamide is most commonly found in foods made
from plants. See Acrylamide Questions & Answers,
supra. Dairy products, meat, and fish do not usually
contain acrylamide after they are cooked at high
temperatures, and when acrylamide is found in these
foods, it forms at lower levels. Id. According to the
U.S. Food & Drug Administration (FDA), the foods
that contribute the most acrylamide to the American
diet are baked and fried starchy foods like french fries,
chips, crackers, donuts, pancakes, and toast. Solomon
2 Dr. Andrew Maier is a toxicologist with a Ph.D. in molecular
toxicology and a principal science advisor at Cardno ChemRisk,
a consulting firm. Maier Decl. ¶¶ 4-6, 13. The Chamber of
Commerce retained him to offer opinions on its behalf. See id.
¶ 13.
3 Dr. Gina Solomon is a medical doctor with an expertise in
environmental health who teaches at the University of California
San Francisco Medical School. Solomon Decl. ¶ 5 & Ex. A. The
State retained her to offer opinions on its behalf. See id. ¶ 17.
App.37a
Decl. ¶ 19 (citing Eileen Abt et al., “Acrylamide Levels
and Dietary Exposure from Foods in the United
States, An Update Based on 2011-2015 Data,” 36 Food
Additive Contamination Part A 1475-90 (July 18, 2019)).
Coffee also contains acrylamide, see id., as do almonds,
olives, and asparagus, Maier Decl. at 16 ¶ 44; Nat’l
Cancer Institute, “Acrylamide and Cancer Risk” (Dec.
5, 2017).4
For decades, experiments have shown that when
mice and rats eat or drink food or water containing
acrylamide, they develop cancerous tumors in many
parts of their bodies, including in their lungs, stomachs,
skin, brains, and reproductive organs. See Solomon
Decl. ¶ 33 (citing, among other materials, Keith A.
Johnson, et al., “Chronic Toxicity and Oncogenicity
Study on Acrylamide Incorporated in the Drinking
Water of Fischer 344 Rats,” 85 Toxicology & Applied
Pharmacology 154-68 (Sept. 15, 1986)). The greater
the quantity of acrylamide the animals ingest, the
more cancer is found in the tested group. Id. ¶ 34.
Administering toxic chemicals to people is, of
course, highly unethical, so the most powerful and
reliable clinical tools for testing the effects of foodborne acrylamide, such as double-blind clinical trials,
are impossible. See Lipworth Decl. ¶ 17,5 ECF No. 9520; see also Michael D. Green, et al., Reference Guide
4 https://www.cancer.gov/about-cancer/causesprevention/risk/diet/acrylamide-fact-sheet, last visited Mar., 24,
2021.
5 Dr. Lauren Lipworth is an epidemiologist and professor at the
Vanderbilt University School of Medicine. Lipworth Decl. ¶ 6-8.
The Chamber of Commerce retained her to offer opinions on its
behalf. See id. ¶ 15.
App.38a
on Epidemiology, in Federal Judicial Center Reference Manual on Scientific Evidence at 555 (3d ed.
2011). Animal studies are the main source of data for
assessing whether chemicals are safe or dangerous to
people. See, e.g., Solomon Decl. ¶ 24. Public health
authorities commonly rely on them. See, e.g., id. ¶¶ 2728. As a result of these experiments, many public
health authorities have concluded that exposure to
acrylamide probably increases the risk of cancer in
people. See id. ¶¶ 37-40. The U.S. National Toxicology
Program, for example, has said that acrylamide is
“reasonably anticipated to be a human carcinogen.”
See id. ¶ 37; U.S. Dep’t of Health & Human Servs.
Nat’l Toxicology Program, Report on Carcinogens,
“Acrylamide” (12th ed. 2011).6 The U.S. Environmental
Protection Agency has found that acrylamide is “likely
to be carcinogenic in humans.” Solomon Decl. ¶ 39;
U.S. Envt’l Protection Agency, Acrylamide Integrated
Risk Assessment (Mar. 22, 2010).7 And a World
Health Organization (WHO) committee that includes
representatives from the FDA has concluded that
acrylamide is carcinogenic. Solomon Decl. ¶ 20; J. Agric.
Org. & Expert Comm. on Food Additives, “Evaluation
of Certain Contaminants in Food” (Feb. 16-25, 2010).8
6 https://ntp.niehs.nih.gov/ntp/roc/content/profiles/acrylamide.p
df, last visited Mar. 24, 2021.
7 https://cfpub.epa.gov/ncea/iris/iris_documents/documents/subs
t/0286_summary.pdf# nameddest=woe, last visited Mar. 24,
2021.
8 https://apps.who.int/iris/bitstream/handle/10665/44514/WHO_
TRS_959_eng.pdf;jsessionid=B264F817F200B900E810643F
558BD16D?sequence=1, last visited Mar. 24, 2021.
App.39a
Animal experiments have limitations. When
researchers study the effects of a chemical on animals
in a laboratory, they must frequently use very large
doses to compensate for small study groups and limited
timeframes, and these doses usually do not approximate
a person’s real-world exposure. See Solomon Decl. ¶ 26;
Maier Decl. ¶¶ 78–83, 87; see supra note 1, “Survey
Data.” According to an expert retained by the Chamber
of Commerce, a person would have to eat more than
ninety large bags of potato chips every day to consume
an equivalent dose of acrylamide. See Maier Decl.
¶ 82. Some researchers also believe that rats and mice
react differently to acrylamide. See id. ¶ 58. Acrylamide
changes to glycidamide when it is broken down in the
body, and glycidamide reacts more potently with DNA
to cause cancer. See id.; see also Solomon Decl. ¶¶ 4344, 48. Mice and rats may metabolize acrylamide into
glycidamide more efficiently than people, so they may
be more sensitive to acrylamide. See Maier Decl. ¶ 58.
The National Cancer Institute offers similar cautions about animal experiments. See supra Acrylamide
and Cancer Risk (“[T]oxicology studies have shown
that humans and rodents not only absorb acrylamide at
different rates, they metabolize it differently as
well.”). Some of the studies of acrylamide were authored
by researchers with financial connections to the food
and beverage industries, however, and many experts
disagree with their conclusions. See Solomon Decl.
¶¶ 49-58.
Experiments on animals are not the only tool
researchers can use to evaluate the danger of acrylamide for people. For example, researchers can and have
exposed human cells to acrylamide and glycidamide in
a laboratory setting. See id. ¶ 44; U.S. Envt’l Protection
App.40a
Agency, “Toxicology Review of Acrylamide” at 168
(Mar. 2010), Purtle Decl. Ex. G, ECF No. 101-11. They
observed that these chemicals react with human DNA
and may become permanently attached. See Solomon
Decl. ¶ 44. These attachments are called “adducts,”
and they are known to cause breaks and mutations in
chromosomes, id., which can in turn cause cancer if
the damaged cells proliferate, id. ¶ 59.
Researchers have also found that glycidamide
leaves a unique genetic signature when it causes
mutations in human cells. See id. ¶ 64 (citing Maria
Zhivagui et al., “Experimental and Pan-Cancer Genome
Analyses Reveal Widespread Contribution of Acrylamide Exposure to Carcinogenesis in Humans,” 29
Genome Res. 521-31 (Apr. 2019)). The International
Agency for Research on Cancer (IARC) maintains a
database of 1,600 human tumor genomes, and scientific
researchers scanned that database to see how many
tumor genomes could be matched with the unique
glycidamide signature. See id. According to the scientists
who published the results of this analysis, about one
third of the tumor genomes could be connected to
glycidamide and thus to acrylamide. See Zhivagui,
supra, Abstract; see also Solomon Decl. ¶ 64. This may
mean that a large portion of human cancer is connected
to acrylamide exposure. See Solomon Decl. ¶ 64.
Epidemiology also offers well-known statistical
tools for investigating whether people are at greater
risk of cancer as a result of acrylamide exposure. See
Lipworth Decl. ¶ 31. Epidemiologists can, for example,
collect data about human consumption of foods that
contain relatively high amounts of acrylamide. See id.
¶¶ 19, 44; Green, supra, at 557-59. A “food frequency
App.41a
questionnaire” is a common survey tool for that purpose. Researchers ask participants how often they eat
or drink various foods and beverages and then
categorize the participants by their levels of likely
acrylamide consumption. See Lipworth Decl. ¶¶ 44,
46, 48; Solomon Decl. ¶¶ 82-83. If people in lowexposure groups later report lower average cancer rates,
and if people in higher-exposure groups report higher
average cancer rates, then it could be that eating foods
with more acrylamide increases the risk of cancer,
assuming other causes can be excluded and the data
is free of errors and biases. See Lipworth Decl. ¶ 19.
Dozens of epidemiological studies conducted in
Europe, the United States, and Asia have investigated
whether acrylamide in food causes cancer in humans.
See id. ¶¶ 35-43, 57-58. An epidemiologist retained by
the Chamber of Commerce reviewed these studies. She
found none showing that eating food with acrylamide
increases the risk of cancer. See id. ¶¶ 141, 144. In her
opinion, “there is no consistent or reliable evidence to
support a finding that dietary exposure to acrylamide
increases the risk of any type of cancer in humans.” Id.
¶ 144. “In fact,” she concludes, “most cancer-specific
relative risks have been close to or below the null
value.” Id. ¶ 141. That is, statistical tests do not reveal
any increase in cancer risk among people who report
greater consumption of acrylamide in food and drinks.
Id. The National Cancer Institute reports a similar
assessment of this research. See supra Acrylamide and
Cancer Risk (“[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.”).
App.42a
Aside from a brief note that some data do show
correlations, see Cal. Opp’n Prelim. Inj. at 8, ECF No.
101, the State does not contest the epidemiological
analysis above. It argues instead that epidemiological
studies are poorly suited to investigating the effects of
acrylamide in food. See id. at 6. Cancer caused by
acrylamide may not surface for decades, and if it does
not, then the absence of a statistical relationship may
prove only that a study did not last long enough. See
Solomon Decl. ¶ 70. Data might also be inaccurate. Food
frequency questionnaires, for example, may not
reliably estimate acrylamide exposure if people cannot
consistently remember what they ate, when, and how
often. See id. ¶¶ 70, 84-88. If measurements of acrylamide exposure are unreliable, studies that rely on those
measurements might systematically underestimate
the effects of acrylamide. See id. ¶¶ 72–73; Lipworth
Decl. ¶ 52. But that is not always so. See Lipworth
Decl. ¶ 55.
Epidemiological studies must also contend with
the ubiquity of acrylamide. It may be impossible to
find a truly low-exposure group. See Solomon Decl.
¶ 76. Acrylamide exposure is also relatively uniform.
See id. If everyone in a study is exposed at similar
rates, then everyone in that study can be expected to
experience similar outcomes. See id. So epidemiological
studies that reveal no relationship between acrylamide
and cancer might not be meaningful.
Despite these uncertainties in the epidemiological
evidence, many government authorities have concluded,
as noted above, that acrylamide “probably” causes or
is “likely” to cause cancer in humans. But none of
these authorities has urged people to avoid foods that
contain acrylamide. At most they voice “concern.” See
App.43a
Purtle Decl. Ex. O, ECF No. 101-19. Some, such as the
FDA, have also offered guidance for reducing acrylamide consumption and production. See U.S. Food &
Drug Amin., “You can Help Cut Acrylamide in Your
Diet (Mar. 14, 2016)9; U.S. Food & Drug Admin.,
“Guidance for Industry: Acrylamide in Foods” (Mar.
2016).10
At the end of the day, however, because acrylamide
is found in so many foods, it is probably impossible to
avoid it completely. See U.S. Food & Drug Admin.,
Statement from Comm’r Scott Gottlieb, M.D. (Aug. 29,
2018), Norris Decl. Ex. H, ECF No. 95-10.11 Both federal
and state public health authorities in fact recommend
eating foods that may contain acrylamide. The FDA
advises Americans not to attempt removing fried,
roasted, and baked foods from their diets. See Acrylamide Questions and Answers, supra. Its best advice
is to eat a variety of healthy foods. Id. (citing U.S.
Dep’t of Health & Human Servs. & U.S. Dep’t of
Agriculture, “2015–2020 Dietary Guidelines” (8th ed.
Dec. 2015)). California public health authorities have
also decided not to warn against acrylamide exposure
in coffee. See Cal. Envt’l Protection Agency, Office of
Envt’l Health Hazard Assessment, Final Statement of
9 https://www.fda.gov/consumers/consumer-updates/you-canhelp-cut-acrylamide-your-diet, last visited Mar. 24, 2021.
10 https://www.fda.gov/regulatory-information/search-fdaguidance-documents/guidance-industry-acrylamide-foods,
visited Mar. 24, 2021.
last
11 https://www.fda.gov/news-events/pressannouncements/statement-fda-commissioner-scott-gottlieb-mdfdas-support-exempting-coffee-californias-cancer, last visited
Mar. 24, 2021.
App.44a
Reasons on Adoption of New Section 25704, Purtle
Decl. Ex. C, ECF No. 101-7. The State found “inadequate
evidence for the carcinogenicity of drinking coffee” in
“a very large number of human studies”; in fact, the
State found “inverse associations—decreasing risk
with increasing coffee consumption—for [some] human
cancers.” Id. at 5.
Sources of acrylamide other than coffee, however,
remain subject to the warning requirements of California’s Safe Drinking Water and Toxic Enforcement
Act of 1986, more commonly known as “Proposition
65,” the initiative that put the act on the books, see
AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 429
(1989). Under Proposition 65, businesses must not
knowingly or intentionally expose people to chemicals
“known to the state to cause cancer or reproductive
toxicity” without a “prior clear and reasonable warning.”
Id. at 431 (citing Cal. Health & Safety Code § 24249.6).
A chemical is “known” to cause cancer or reproductive
toxicity if it meets one of three statutory criteria:
●
“[I]n the opinion of the state’s qualified experts
it has been clearly shown through scientifically valid testing according to generally
accepted principles to cause cancer or reproductive toxicity”;
●
“[A] body considered to be authoritative by
such experts has formally identified it as
causing cancer or reproductive toxicity”;
●
“[A]n agency of the state or federal government has formally required it to be labeled
or identified as causing cancer or reproductive
toxicity.”
Cal. Health & Safety Code § 25249.8(a)-(b).
App.45a
The list of chemicals “known to cause cancer”
must also include, “at a minimum,” any substances
listed in California Labor Code subsections 6382(b)(1)
and (d), which define “hazardous substances” under
California’s Hazardous Substances Information and
Training Act. Those subsections refer to “[s]ubstances
listed as human or animal carcinogens by [IARC]” and
“any substance within the scope of the federal Hazard
Communication Standard” as specified by federal
regulation. See Cal. Labor Code § 6382(d) (citing 29
C.F.R. § 1910.1200). The cited federal regulation refers
again to chemicals identified by IARC and the National
Toxicology Program. See Deukmejian, 212 Cal. App.
3d at 435 (citing 29 C.F.R § 1910.1200 App’x A & B).
A few years after Proposition 65 was passed, a
California Court of Appeal interpreted Health &
Safety Code 25249.8(a)–(b), Labor Code section 6382,
and the regulations they cite as requiring the list of
chemicals to include “not only those chemicals that
are known to cause cancer in humans, but also those
that are known to cause cancer in experimental
animals.” Baxter Healthcare Corp. v. Denton, 120 Cal.
App. 4th 333, 345 (2004) (citing Deukmejian, 212 Cal.
App. 3d at 436). A chemical “must be listed even if it
is known to be carcinogenic or a reproductive toxin only
in animals.” Am. Chemistry Council v. Office of Envt’l
Health Hazard Assessment, 55 Cal. App. 5th 1113,
1142 (2020). In Proposition 65 enforcement litigation
over acrylamide in potato chips, California has agreed
that a chemical may be listed as “known to the state
to cause cancer” even if the State does not “know” in
the colloquial sense “that acrylamide causes cancer in
humans.” Norris Decl., Ex. L at 2 ¶ 4, ECF No. 95-14
(Joint Stipulation of Undisputed Facts, People v.
App.46a
Frito-Lay, Inc., No. BC 338956 (Cal. Sup. Ct. L.A.
Cty., filed July 28, 2008)). That finding is simply not
required. See id.
Proposition 65 does not specify what warning is
necessary for chemicals “known” to cause cancer; it
requires only that the warning be “clear and
reasonable.” Cal. Health & Safety Code § 25249.6.
Regulations promulgated by the California Office of
Environmental Health Hazards Assessment require
warnings to name the chemical and to be displayed
“prominently,” “with such conspicuousness” that they
are “likely to be seen, read, and understood by an
ordinary individual.” See Cal. Code Regs. tit. 27
§ 25601(b)–(d). A warning may include more information than this, but only if the addition “identifies the
source of the exposure or provides information on how
to avoid or reduce exposure.” Id. § 25601(e). The regulations also offer a model warning that serves as a safe
harbor against liability for food warnings: “Consuming
this product can expose you to [name of one or more
chemicals], which is [are] known to the State of California to cause cancer. For more information go to
www.P65warnings.ca.gov/food.” Cal. Code Regs. tit. 7,
§ 25607.2(a)(2) (bracketed phrases in original).
California has permitted more nuanced warnings
about acrylamide in at least some foods in settlement
agreements. It permitted a warning about acrylamide
in the potato chip litigation to say the chips “contain
acrylamide, a substance identified as causing cancer
under California’s Proposition 65.” Purtle Decl. Ex. E
at 10, ECF No. 101-9 (Consent J. as to Frito-Lay at 10,
People v. Frito-Lay, Inc., supra (filed Aug. 1, 2008)).
The State also permitted the potato chip warning to
explain that foods other than chips contain acrylamide
App.47a
and that acrylamide is not added to these foods, but
rather is “created when these and certain other foods
are browned.” Id. The State further permitted the chip
warning to say the “FDA has not advised people to
stop eating potato crisps and/or potato chips . . . or
any foods containing acrylamide as a result of
cooking.” Id.
The penalties under California law for a failure
to warn are “severe.” Deukmejian, 212 Cal. App. 3d at
430. Violations are subject to civil penalties of up to
$2,500 “per day for each violation.” Cal. Health &
Safety Code § 25249.7(b)(1). Proposition 65 also permits
injunctions against both existing violations and
conditions “in which there is a substantial probability
that a violation will occur.” See id. §§ 25249.7(a), 25249.
11(e). State and local prosecutors can bring enforcement actions for failures to warn, id. § 25249.7(c), as
can private litigants, see id. § 25249.7(d). Successful
private enforcers can recover a quarter of the civil
penalty imposed and their reasonable attorneys’ fees.
See id. § 25249.12(d); Cal. Civ. P. Code § 1021.5.
Proposition 65 does include some safeguards
against overzealous or frivolous private enforcement.
For example, a private litigant must give sixty days’
notice of the alleged violation both to the alleged
violator and to the prosecutor in whose jurisdiction
the violation is alleged. See id. § 25249.7(d)(1). That
notice must include a “certificate of merit” stating the
private enforcer “has consulted with one or more
persons with relevant and appropriate experience or
expertise who has reviewed facts, studies, or other
data regarding the exposure to the listed chemical.”
Id. The certificate must then confirm the private
App.48a
enforcer believes “there is a reasonable and meritorious
case for the private action.” Id.
The warning requirement is also subject to
exceptions and affirmative defenses. Proposition 65
grants businesses an affirmative defense if they can
prove the alleged exposure “poses no significant risk
assuming lifetime exposure at the level in question.”
See Cal. Health & Safety Code § 25249.10(c). The
defendant must prove that fact using “evidence and
standards of comparable scientific validity” to the
evidence and standards that led to the inclusion of
that substance on the Proposition 65 list. See id. A
business can also make that showing preemptively in
a declaratory judgment action. See Baxter, 120 Cal.
App. 4th at 344. Under the terms of this exception, the
California Office of Environmental Health Hazards
Assessment has determined that an exposure of 0.2
micrograms of acrylamide per day “poses no significant
risk.” See Cal. Code Regs. tit. 27, § 25705(c)(2). That
Office has also published regulations permitting higher
levels of exposure in some circumstances, including
when “chemicals in food are produced by cooking
necessary to render the food palatable or to avoid
microbial contamination.” Id. ¶ 25703(b)(1). A business
can also ask the Office for a formal opinion about
whether a warning is necessary (a “safe use determination”). See Cal. Code Regs. tit. 27, § 25204. And
finally, as is clear from the record on this matter, businesses could urge the Office to create an exception for
a specific food or drink as it did for acrylamide in
coffee.
Despite these safeguards and exceptions, a successful defense might be impossible to mount, practically
speaking. It is a defendant’s burden to prove an
App.49a
exposure poses no significant risk under section
25249.10(c), so a plaintiff need not plead or prove that
an exposure did or could cause cancer. See Consumer
Defense Group v. Rental Housing Industry Members,
137 Cal. App. 4th 1185, 1214-15 (2006). And given the
high standard of scientific proof required by section
25249.10(c), “it may take a full scale scientific study
to establish the amount of the carcinogen is so low
that there is no need for a warning.” Id. at 1215. One
state appellate court has observed that this allocation
of burdens, when combined with other provisions of
the private enforcement regime, sets up a framework
that may permit unscrupulous attorneys to “shake
down” vulnerable targets” wielding dubious claims of
carcinogenic exposure. See id. at 1215-19.
Acrylamide was added to the Proposition 65 list
in 1990, long before the publication of research
showing acrylamide was present in food. See Norris
Decl. Ex. L at 2. After acrylamide was discovered in
food, CERT—the intervenor defendant in this case—
was one of the first plaintiffs to file a private enforcement action. See Metzger Decl. ¶ 5, ECF No. 93. Its
early lawsuits resulted in consent judgments in Los
Angeles County Superior Court. Id. French fry manufacturers agreed to display warnings, potato chip
manufacturers agreed to reduce acrylamide levels in
chips, and the defendants paid more than $2 million
in penalties and attorneys’ fees. See id.
CERT also pursued Proposition 65 litigation
through multiple cases against coffee roasters and
retailers after the California Office of Environmental
Health Hazards Assessment published opinions about
the risks of acrylamide in coffee. See id. ¶¶ 6-13; see
also Cal. Off. of Envt’l Health Hazards Assessment,
App.50a
“Characterization of Acrylamide Intake from Certain
Foods at 11-12 (Mar. 2005).12 These cases were
consolidated and tried in several phases. See Metzger
Decl. ¶¶ 10-13; Norris Decl. ¶¶ 5, 12-15. Some of the
defendants settled after unsuccessfully attempting to
prove exposures to acrylamide in coffee did not elevate
the risk of cancer and to show Proposition 65 was
unconstitutional because it compelled false cancer
warnings. See Metzer Decl. ¶ 12. CERT secured an
award of more than $1.8 million in attorneys’ fees. Id.
Other defendants continued in the litigation. While
the case was still pending, the Office of Environmental
Health Hazards Assessment proposed to change its
Proposition 65 regulations to make an exception for
coffee. The FDA supported the proposed change. See
supra Gottlieb Statement, ECF No. 95-10. The exception was eventually adopted, as described above. On the
coffee roasters’ and retailers’ motion, the California
court then granted summary judgment to the
defendants remaining in the case, and CERT
appealed. See Metzger Decl. ¶ 14; Norris Decl. ¶ 5 &
Ex. Q. The appeal is pending, as are many other
private enforcement actions about acrylamide in food,
which have multiplied in recent years. See Sixth Not.,
ECF No. 111.
The Chamber of Commerce filed this case in
October 2019 while the coffee litigation was ongoing.
Its legal claim is simple: the First Amendment prohibits
California from forcing businesses to make false
statements, so because California does not “know”
that eating food with acrylamide causes cancer in
12 https://oehha.ca.gov/media/downloads/crnr/acrylamideintake
report.pdf, last visited Mar. 24, 2021.
App.51a
people, Proposition 65 is unconstitutional if it mandates
that assertion. See generally Compl., ECF No. 1. The
Chamber named one defendant, the Attorney General
in his official capacity, and asserted one claim for
declaratory relief. See id. ¶¶ 13, 73-84. CERT moved
to intervene as a defendant, and the court approved
the parties’ stipulation to permit the intervention. See
Stip. & Order, ECF No. 29. The court then granted the
State’s and CERT’s motions to dismiss. See Order, ECF
No. 56. It declined to assert jurisdiction over the
Chamber’s claim in light of the pending litigation in
state court, described above. See id. at 3-6 (applying
Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942)). The
Chamber’s request for relief was also partially retrospective, so the court found dismissal was appropriate
under the Anti-Injunction Act, 28 U.S.C. § 2283. See
id. at 6-8.
The Chamber then amended its complaint to add
a claim under 42 U.S.C. § 1983 and to request only
prospective relief. See First Am. Compl., ECF No. 57.
California and CERT both moved to dismiss for lack
of subject matter jurisdiction and under the
abstention doctrine described in Colorado River Water
Conservation District v. United States, 424 U.S. 800
(1976). The court denied these motions. ECF No. 84.
The case is thus proceeding on the First Amended
Complaint, ECF No. 57, which again names only the
Attorney General as a defendant, with CERT remaining
a defendant in intervention.
The Chamber now asks the court to enter a
preliminary injunction. Chamber’s Mot., ECF Nos. 95
& 95-1. CERT has moved for summary judgment to
the extent the Chamber’s claims would prohibit private
enforcement of Proposition 65. CERT Mot., ECF No. 93.
App.52a
CERT argues those claims are barred by the Noerr–
Pennington doctrine. See E. R.R. Presidents Conf. v.
Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United
Mine Workers of Am. v. Pennington, 381 U.S. 657
(1965). The court addresses CERT’s motion first.
II. Summary Judgment
A court may grant summary judgment only if
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Here, the parties dispute
none of the relevant facts. CERT’s motion rests on a
legal question: whether the Chamber’s claims are
barred by the Noerr–Pennington doctrine because those
claims burden CERT’s First Amendment right to
petition.
“Under the Noerr–Pennington doctrine, those who
petition all departments of the government for redress
are generally immune from liability.” Empress LLC v.
City & Cty. of San Francisco, 419 F.3d 1052, 1056 (9th
Cir. 2005). “Although the Noerr–Pennington doctrine
originally immunized individuals and entities from
antitrust liability, Noerr–Pennington immunity now
applies to claims under § 1983 that are based on the
petitioning of public authorities.” Id. It also protects
“conduct incidental to the prosecution of the suit,”
such as demand letters and related prelitigation
communications. Sosa v. DIRECTV, Inc., 437 F.3d
923, 935-36 (9th Cir. 2006) (citation omitted). In practical effect, however, the doctrine is one of constitutional avoidance: courts should “construe federal statutes
so as to avoid burdening conduct that implicates the
protections afforded by the Petition Clause unless the
statute clearly provides otherwise.” Id. at 931.
App.53a
The Ninth Circuit has derived a three-step “analysis” for evaluating Noerr–Pennington defenses from
the Supreme Court’s decision in BE & K Construction
Co. v. NLRB, 536 U.S. 516 (2002). See Sosa, 437 F.3d
at 930-31. First, would an adverse decision impose a
burden on the defendant’s alleged petitioning activity?
Second, is there at least a “substantial question” whether
the statute that imposes this burden conflicts with the
Constitution? And third, can the statute be construed
in a way to avoid the burden? If so, then that construction should prevail; if not, then the court must
decide whether the statute cannot be enforced because
it would deprive the defendant of a constitutional right.
This analysis is easier to understand when
expressed in more concrete terms. In Sosa, for example,
DirecTV had sent more than a hundred thousand
demand letters to people who bought “smart cards”
that allowed them to intercept DirecTV’s satellite
signals without paying. See id. at 926. Several of the
recipients then sued DirecTV for extortion and unfair
business practices in California state court, and
DirecTV successfully moved to strike the complaint.
Id. at 927. Some of the unsuccessful state-court plaintiffs
then filed a lawsuit in federal district court, claiming
DirecTV had violated the Racketeer Influenced and
Corrupt Organizations Act. Id. DirecTV moved to
dismiss, citing the Noerr–Pennington doctrine, and
prevailed. Id. The Ninth Circuit affirmed. First, the
federal lawsuit sought “to impose RICO liability on
DirecTV for sending the demand letters,” so it burdened
the petitioning activity, id. at 932-33; second, that
burden implicated the Petition Clause, which at least
arguably protects “reasonably based prelitigation
settlement demands,” id. at 933-39; and third, the
App.54a
RICO statute could be interpreted to permit legitimate
prelitigation demand letters. Id. at 939-42. For that
reason, the Ninth Circuit concluded that the trial
court had correctly dismissed the claims against
DirecTV. See id. at 942.
Here, as in Sosa, the answer to the first question
is clear. If the Chamber of Commerce ultimately
succeeds in this lawsuit, CERT would no longer be
able to enforce Proposition 65’s warning requirements
against businesses that sell food and drink containing
acrylamide. The Chamber’s claims thus impose a
burden on CERT’s attempts to petition California
courts.
But in answer to the second question, the burden
imposed does not weigh on a right protected by the
Petition Clause. The Petition Clause prohibits
Congress from making laws that abridge “the right of
the people . . . to petition the Government for a redress
of grievances.” U.S. Const. First Am. The court is
aware of no authority interpreting the First Amendment as preserving a person’s right to enforce a state
law that contradicts the Constitution, which is the
effect of CERT’s argument here. The court declines to
read the Petition Clause as CERT would have it.
Doing so would permit states to insulate their
unconstitutional laws from constitutional challenges
by permitting private parties to enforce them.
Another way to express this reasoning is in terms
of liability, as the Chamber argues persuasively. It
points out, for example, that CERT is not named in
the Chamber’s complaint and will not face any liability
if the Chamber prevails. See Opp’n Summ. J. at 6-12.
The Chamber’s goal in this case is not to punish
CERT. Nor is its purpose to obtain compensation for
App.55a
an injury CERT caused or to discourage CERT from
petitioning for relief under Proposition 65. It is
instead to vindicate the constitutional rights of the
Chamber’s own members. The Noerr– Pennington
doctrine is a defense against claims “based on the
petitioning of public authorities,” Empress LLC, 419
F.3d at 1056, not claims based on the proponent’s own
constitutional rights, see Cisco Sys., Inc. v. Beccela’s
Etc., LLC, 403 F. Supp. 3d 813, 825 (N.D. Cal. 2019)
(“Defendants’ declaratory judgment claim is not seeking
to hold [the plaintiff] liable for its protected
activity. . . . [T]he claim seeks a declaration that
Defendants are not liable for infringement under the
Lanham Act. The claim thus is outside the ambit of
Noerr–Pennington.” (emphasis in original)). The Noerr–
Pennington defense is thus unavailable to CERT.
This is not to say the Noerr–Pennington doctrine
never a offers a defense to requests for equitable relief,
including in a declaratory judgment action. “[A]n
action seeking a declaratory judgment . . . may force a
citizen who petitions the government to incur the
expense of defending his position in court and may
therefore have precisely the sort of chilling effect on
protected petitioning activity that the Noerr–Pennington doctrine is designed to prevent.” Westlands
Water Dist. Distribution Dist. v. Nat. Res. Def. Council,
Inc., 276 F. Supp. 2d 1046, 1054 (E.D. Cal. 2003). This
court’s decision in B&G Foods North America, Inc. v.
Embry is a rare example of exactly such a case. See
No. 20-0526, 2020 WL 5944330 (E.D. Cal. Oct. 7,
2020). The plaintiff in B&G Foods, a food manufacturer,
sued a consumer who had herself filed a Proposition
65 enforcement action in state court the day before.
See generally Compl., No. 20-0526 (E.D. Cal. filed
App.56a
Mar. 6, 2020).13 The food manufacturer even sued the
attorney who was representing the consumer in state
court. See id. As a result, the federal lawsuit’s burden
on the defendant’s right to petition was clear even
though the claims were, on their face, equitable
constitutional claims. Here, by contrast, the Chamber
is not litigating concurrently against CERT in state
court, did not sue CERT or CERT’s attorneys, and did
not even name CERT in its complaint. CERT became
a defendant by its own choice when it moved to
intervene.
Granting CERT’s motion could also lead to an
absurd result. The State does not argue it is entitled
to a defense under the Noerr–Pennington doctrine.
CERT implies the State would remain a defendant in
this case even if CERT is entitled to summary
judgment. See Reply Summ. J. at 2, ECF No. 105
(suggesting Chamber of Commerce “could litigate
solely against [Attorney General] Becerra”). If this
implication were correct, CERT and others would be
free to pursue private enforcement actions, but this
case could continue. And if the Chamber eventually
prevailed, the State itself could not enforce Proposition
65. This would leave consumers free to file enforcement
actions even though the same enforcement actions
would be unconstitutional if filed by the State. CERT
has cited no authority that could justify such an
improbable outcome, and the court is aware of none.
If anything, California law appears to favor public
13 The court takes judicial notice of this document, its filing, and
its allegations (but not their truth). See Reyn’s Pasta Bella, LLC
v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may
take judicial notice of court filings and other matters of public
record.”).
App.57a
enforcement of Proposition 65, not private enforcement,
while not precluding the latter. See, e.g., Yeroushalmi
v. Miramar Sheraton, 88 Cal. App. 4th 738, 750 (2001)
(concluding that Proposition 65 notice letters are
intended to encourage public enforcement).
CERT is not entitled to a defense under the Noerr–
Pennington doctrine. Its motion for summary judgment
is denied.
III. Preliminary Injunction
The Chamber of Commerce moves for a preliminary injunction barring the State and any private
litigant from enforcing Proposition 65 against businesses who do not warn consumers that acrylamide in
food is “known to the State of California to cause
cancer.” It seeks prospective relief only; it asks the
court to enjoin only “new lawsuits.” See Chamber’s
Mot. at 20. It does not ask the court to prohibit notices
of alleged Proposition 65 violations, to enjoin existing
suits, to prohibit settlements or consent decrees, or to
bar CERT from continuing its litigation about acrylamide in coffee. See Chamber’s Reply at 14-15.
The State and CERT both oppose the motion.
Each argues separately that the Chamber has not met
its obligation to show a preliminary injunction should
be granted under the test in Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7 (2008). See
Cal. Opp’n at 9-20, ECF No. 101; CERT Opp’n at 17,
ECF No. 100. CERT also contends, more ardently, that
a preliminary injunction would be an unconstitutional
prior restraint on its First Amendment rights. See
CERT Opp’n at 8-16. The court addresses that argument first.
App.58a
A. Prior Restraint
A “prior” or “previous” restraint is an administrative or judicial order “forbidding certain communications” before those communications occur. Alexander
v. United States, 509 U.S. 544, 550 (1993) (citation,
quotation marks, and emphasis omitted). Preliminary
injunctions barring speech “are classic examples of
prior restraints.” Id. They are almost always improper;
the Supreme Court has described the “constitutional
freedom from previous restraint” as an “immunity”
against “censorship” rooted deeply in American and
English legal history. See Near v. State of Minnesota
ex rel. Olson, 283 U.S. 697, 716, 720 (1931). There is
“a heavy presumption” against the validity of a prior
restraint on speech. Org. for a Better Austin v. Keefe,
402 U.S. 415, 419 (1971) (citations and quotation marks
omitted).
Not all orders that make expression more difficult,
expensive, or less effective are prior restraints. An
order forfeiting a publisher’s assets, for example, is
not a prior restraint even if it prevents the publisher
from selling its magazines. See Alexander, 509 U.S. at
550-51. If the publisher could find new funding, it could
continue publishing. See id. at 551. Nor is an order
closing a bookstore necessarily a prior restraint. See
Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07 (1986).
The store could move to a new building. See id. at 706.
If the Chamber of Commerce were requesting a
preliminary injunction against pre-suit demand letters,
settlement negotiations, or notices of violations, it
would likely be requesting a prior restraint. These are
“communications” under Alexander, 509 U.S. at 550.
But the Chamber is not asking for that relief. As
confirmed at hearing, at this stage it is asking only for
App.59a
an injunction against future lawsuits while this case
is pending. An injunction barring enforcement through
litigation would admittedly dull the teeth of a demand
letter or notice for the injunction’s duration. Without
a legal threat, a recipient may not negotiate or even
respond. But the injunction the Chamber requests
today would not forbid letters and demands, so it would
not be a prior restraint on speech. See id. at 550-51
(holding that order was not prior restraint because it did
not “forbid petitioner from engaging in any expressive
activities in the future” (emphasis in original)). The
court need not and does not consider now whether
some broader or more permanent form of relief might
be an unconstitutional prior restraint.
What remains, then, is CERT’s argument that a
preliminary injunction against future enforcement
actions and nothing more would still be an impermissible prior restraint. CERT cites no decision denying
a preliminary injunction against likely unconstitutional
private litigation because the injunction would amount
to a prior restraint. This court’s own searches have
uncovered no such case. To the contrary, the All Writs
Act permits federal courts to “issue all writs necessary
or appropriate in aid of their respective jurisdictions,”
28 U.S.C. § 1651, and the Anti-Injunction Act permits
“injunctions against the institution of state court
proceedings,” Dombrowski v. Pfister, 380 U.S. 479,
484 n.2 (1965), which implies that a federal court may
enjoin new state court lawsuits if necessary and
appropriate, see, e.g., In re Baldwin-United Corp., 770
F.2d 328, 335-36 (2d Cir. 1985). Federal courts have
indeed enjoined lawsuits preemptively in many
circumstances, for example to quiet post-settlement
App.60a
donnybrooks,14 to resolve class actions15 and multidistrict litigation,16 to consolidate admiralty claims in
a single venue,17 and to sanction vexatious litigants
or prevent frivolous lawsuits,18 among other reasons.19
14 See, e.g., Flanagan v. Arnaiz, 143 F.3d 540, 544-45 (9th Cir.
1998) (affirming injunction against “filing any action in the
courts of any state” related to settlement agreement because
“‘federal injunctive relief may be necessary to prevent a state
court from so interfering with a federal court’s consideration or
disposition of a case as to seriously impair the federal court’s
flexibility and authority to decide that case.’” (quoting Atl. Coast
Line R.R. Co. v. B’hood of Locomotive Eng’rs, 398 U.S. 281, 295
(1970))).
15 See, e.g., Nitsch v. Dreamworks Animation SKG Inc., No. 1404062, 2016 WL 4424965, at *8 (N.D. Cal. July 6, 2016)
(enjoining any lawsuits by members of proposed settlement class).
16 See, e.g., Baldwin-United, 770 F.2d at 331 (affirming injunction against “persons having actual knowledge of” injunction
from “commencing any action or proceeding” against any
defendants in multidistrict litigation that “may in any way affect
the right of any plaintiff or purported class member in any
proceeding under” multidistrict litigation).
17 See, e.g., In re Complaint of Ross Island Sand & Gravel, 226
F.3d 1015, 1017 (9th Cir. 2000) (per curiam) (describing Limitation
of Liability Act, 46 U.S.C. § 183, which permits district courts to
enjoin related actions against owner of vessel).
18 See, e.g., Wood v. Santa Barbara Chamber of Commerce, Inc.,
705 F.2d 1515, 1523 (9th Cir. 1983) (“A United States District
Court hearing a particular case possesses the power to enjoin the
filing of related lawsuits in other federal courts.”); De Long v.
Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (“[T]here is strong
precedent establishing the inherent power of federal courts to
regulate the activities of abusive litigants by imposing carefully
tailored restrictions under the appropriate circumstances.”
(citation omitted)).
19 See, e.g., Orange Cty. v. Air California, 799 F.2d 535, 537 (9th
Cir. 1986) (affirming district court’s decision to bar intervention
App.61a
In rare circumstances, district courts in this circuit can
even enjoin a litigant from pursuing claims in another
country.20
That said, the Supreme Court has suggested that
“enjoining a lawsuit could be characterized as a prior
restraint.” BE & K, 536 U.S. at 530. An injunction
against future litigation “carries at least some risk” of
violating the First Amendment’s Petition Clause. Jones
v. Rd. Sprinkler Fitters Local Union No. 669, U.A.,
AFL-CIO, No. 13-3015, 2013 WL 5539291, at *2 (C.D.
Cal. July 24, 2013). In this respect, CERT’s prior
restraint argument echoes its Noerr–Pennington argument. Both rest on CERT’s claim to a First Amendment
right to pursue Proposition 65 litigation in state court
regardless of any constitutional implications of that
litigation. As explained in the previous section, CERT’s
argument leads to an absurd conclusion. In addition,
if the Chamber is correct that Proposition 65 lawsuits
about acrylamide in food are inconsistent with the
First Amendment, private enforcement actions targeting acrylamide would run head-on into a constitutional
prohibition. And “if the lawsuit seeking to be enjoined
‘has an illegal objective,’ it is ‘not protected by the
Petition Clause.’” Id. (quoting Small v. Operative
Plasters’ Local 200, 611 F.3d 483, 493 (9th Cir. 2010),
after explaining the district court had enjoined “filing [of] new
CEQA actions in state court”).
20 See, e.g., Seattle Totems Hockey Club, Inc. v. Nat’l Hockey
League, 652 F.2d 852, 855 (9th Cir. 1981) (“A federal district
court with jurisdiction over the parties has the power to enjoin
them from proceeding with an action in the courts of a foreign
country, although the power should be used sparingly.” (citation
and quotation marks omitted)); Sun World, Inc. v. Lizarazu
Olivarria, 804 F. Supp. 1264, 1270 (E.D. Cal. 1992) (same).
App.62a
in context of retaliatory labor claims); see also Bill
Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 737 n.5
(1983) (holding that suit with “an objective that is
illegal” may be enjoined without violating First Amendment).
In sum, if the presumption against prior restraints
protects a Petition Clause right to file new lawsuits, it
would not bar the relief the Chamber seeks here. The
court thus considers whether the Chamber is likely to
succeed on the merits of its First Amendment claim.
B. Likelihood of Success on the Merits
“A preliminary injunction is an extraordinary
remedy, never awarded as of right.” Winter, 555 U.S.
at 24. In determining whether to issue a preliminary
injunction, courts must consider (1) whether the moving
party “is likely to succeed on the merits” (2) whether
it is “likely to suffer irreparable harm in the absence
of preliminary relief,” (3) whether “the balance of
equities tips in [its] favor, and” (4) whether “an injunction is in the public interest.” Id. at 20. The moving party
has the burden of proving an injunction is warranted
by “a clear showing.” See Mazurek v. Armstrong, 520
U.S. 968, 972 (1997) (citation, quotation marks, and
emphasis omitted)).
The court begins with Chamber’s potential for
success on the merits of its First Amendment claim.
“The First Amendment, applicable to the States through
the Fourteenth Amendment, prohibits laws that abridge
the freedom of speech.” Nat’l Inst. of Family & Life
Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361, 2371
(2018). Laws that target speech “based on its communicative content” are unconstitutional unless the
government shows the laws survive strict scrutiny in
App.63a
that they are “narrowly tailored to serve compelling state
interests.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155,
163 (2015). The government must also satisfy this test
when it compels people to say something they would
not otherwise say, as Proposition 65 does here, because
these types of regulations necessarily change what a
person says. See NIFLA, 138 S. Ct. at 2371; Riley v.
Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S.
781, 795 (1988).
Although strict scrutiny is the “ordinary” rule in
such cases, the Supreme Court has sometimes “applied
a lower level of scrutiny” to regulations of commercial
speech. NIFLA, 138 S. Ct. at 2372. “Commercial speech”
is “expression related solely to the economic interests
of the speaker and its audience.” Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S.
557, 561 (1980). Under Zauderer v. Office of Disciplinary
Counsel, “the government may compel truthful disclosure in commercial speech as long as the compelled
disclosure is ‘reasonably related’ to a substantial governmental interest.” CTIA—The Wireless Ass’n v. City
of Berkeley, Cal., 928 F.3d 832, 845 (9th Cir.), cert.
denied, 140 S. Ct. 658 (2019) (quoting 471 U.S. 626,
651 (1985)). The required disclosure must be “limited
to ‘purely factual and uncontroversial information.’”
NIFLA, 138 S. Ct. at 2372 (quoting Zauderer, 471 U.S.
at 651). Although Zauderer itself concerned the government’s interest in preventing deception, see 471 U.S.
at 651, the Ninth Circuit has held that the Zauderer
test also applies when “the disclosure does not protect
against deceptive speech,” CTIA, 928 F.3d at 843-44.
The parties agree Proposition 65 compels commercial speech. See Cal. Opp’n at 9 n.4; Chamber’s Mot.
at 9. This leaves the court to decide whether, under
App.64a
Zauderer, 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. See Am. Beverage Ass’n v. City & Cty.
of San Francisco, 916 F.3d 749, 756 (9th Cir. 2019) (en
banc). The court may consider these requirements in
any order. See id. The State bears the burden to show
each element of this test is likely to be resolved in its
favor, both in response to a motion for a preliminary
injunction and on the merits. See id.; Thalheimer v.
City of San Diego, 645 F.3d 1109, 1115-16 (9th Cir.
2011), overruled in part on other grounds by Bd. of
Trustees of Glazing Health & Welfare Tr. v. Chambers,
941 F.3d 1195 (9th Cir. 2019) (en banc).
In analyzing whether the Chamber is likely to
succeed, the safe harbor warning described in the
regulations implementing Proposition 65 is the natural
place to start. In this case, the safe-harbor warning
would read: “Consuming this product can expose you
to [acrylamide], which is . . . known to the State of
California to cause cancer. For more information go to
www.P65warnings.ca.gov/food.” Cal. Code Regs. tit.
27, § 25607.2(a)(2).
At this stage of the case, the State has not shown
this warning is purely factual and uncontroversial. By
asserting vaguely that consuming a product can “expose”
a person to acrylamide—a chemical most people have
likely never used in preparing food or even heard of—
the warning implies incorrectly that acrylamide is an
additive or ingredient. The safe harbor language is also
only “factual” if consumers can discern its underlying
logic:
App.65a
●
Animals more frequently develop cancerous
tumors when they consume doses of the
chemical many hundreds of times larger
than the amounts in the food.
●
Toxicologists presume that chemicals causing
cancer in experimental animals also cause
cancer in people, even in much smaller
doses, absent evidence to the contrary, and
●
As a result, following a cascade of selfreferential state and federal regulations, the
chemical is, by definition, “known” to cause
cancer in humans. See Cal. Opp’n at 12-13.
Such discernment is unlikely. People who read the
safe harbor warning will probably believe that eating
the food increases their personal risk of cancer. See id.
at 2 (citing Nowlis Decl. ¶ 54, ECF No. 95-25).
Some evidence does support such an inference,
including laboratory experiments with mice and rats,
in vitro studies of human cells, and statistical investigations of tumor genomes. But dozens of epidemiological studies have failed to tie human cancer to
a diet of food containing acrylamide. Nor have public
health authorities advised people to eliminate acrylamide from their diets. They have at most voiced
concern. California has also decided that coffee, one of the
most common sources of acrylamide, actually reduces
the risk of some cancers. And that decision rested in
part on a review of epidemiological evidence similar to
the evidence the Chamber cites now. See Norris Decl.
Ex. N at 5. In short, the safe harbor warning is controversial because it elevates one side of a legitimately
unresolved scientific debate about whether eating foods
and drinks containing acrylamide increases the risk of
App.66a
cancer. Cf. CTIA, 928 F.3d at 845 (distinguishing
NIFLA, 138 S. Ct. at 2372).
The State cannot escape these uncertainties by
redefining what it means for California to “know” that
acrylamide causes cancer, see Nat’l Ass’n of Manufacturers v. S.E.C., 800 F.3d 518, 529-30 (D.C. Cir. 2015),
or by showing the warning contains no affirmative
falsehoods, CTIA—The Wireless Ass’n v. City & Cty. of
San Francisco, Cal., 827 F. Supp. 2d 1054, 1062-63
(N.D. Cal. 2011), aff’d in relevant part, 494 F. App’x
752 (9th Cir. 2012) (unpublished). Statements are not
necessarily factual and uncontroversial just because
they are technically true. Courts in this Circuit have
reached that conclusion many times with respect to
Proposition 65 and other regulations. Another judge
of this court recently enjoined a Proposition 65 warning about what was “known” to California because the
warning was only correct if the reader understood the
“complex web of statutes, regulations, and court
decisions” behind Proposition 65. Nat’l Ass’n of Wheat
Growers v. Becerra, 468 F. Supp. 3d 1247, 1259-60 (E.D.
Cal. 2020). A Northern District court found similarly
that a warning about radiation from cell phones went
too far because it could leave “the uninitiated” with a
“misleading impression” about the dangers they actually
faced. CTIA, 827 F. Supp. 2d at 1062-63. And the
Ninth Circuit rejected California’s argument that a
label about a video game age ratings was uncontroversial and factual because the scheme invited incorrect
conclusions about what was legal and what was not.
See Video Software Dealers Ass’n v. Schwarzenegger,
556 F.3d 950, 966-67 (9th Cir. 2009), aff’d sub nom.
Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011).
App.67a
The problems posed by the safe harbor warning
could have been avoided. The State could allow businesses to explain that acrylamide forms naturally when
some foods are prepared. It could permit businesses to
say that California has listed acrylamide as a chemical
that “probably” causes cancer or is a “likely” carcinogen or that the chemical causes cancer in laboratory
animals. It could permit businesses to say that acrylamide is commonly found in many foods and that
neither the federal government nor California has
advised people to cut acrylamide from their diets. The
State indeed permitted a more circumspect warning
as a result of the Frito Lay litigation. See Consent J.
as to Frito-Lay at 10, Purtle Decl. Ex. E.
According to the State, an alternative warning
along these lines is already available to any California
business. See Cal. Opp’n at 15-16. And the Chamber
concedes California regulations no longer require warnings to state that “the chemical in question is known
to the state to cause cancer.” See Chamber’s Mot. at 5.
The Attorney General’s current regulations also permit
the parties to a private enforcement action to agree for
a defendant to warn that a product “may” cause
cancer. See Cal. Code Regs. tit. 11, § 3202(b).
Other regulations, by contrast, appear to contradict
the State’s position. The Attorney General’s regulations
do not permit warnings that the chemical itself “may”
cause cancer. See id. Regulations bar all but a few
limited additions and clarifications. See Cal. Code
Regs. tit. 27 § 25601(e); id. tit. 11 § 3202(b). California
courts have overruled demurrers and denied motions for
summary adjudication in enforcement actions about
warnings similar to those the State accepted in the
Frito Lay litigation, leading to years-long litigation.
App.68a
See Norris Decl. ¶¶ 34-41. Defending the resulting
litigation can then be cost-prohibitive, as described
above. As a result, when recent Proposition 65 settlements have resulted in an agreed warning, rather
than, for example, a reformulation or cessation of
business, they have almost uniformly used the safe
harbor language that is likely misleading. See id.
¶¶ 17-23. On this basis, the Chamber argues that only
the safe harbor warning is actually useable in practice.
See Chamber’s Mot. at 11-12; Chamber’s Reply at 8-9,
ECF No. 106.
On this record, the Chamber’s argument is persuasive. The State cannot “put the burden on commercial
speakers to draft a warning that both protects their
right not to speak and complies with Proposition 65.”
Wheat Growers, 468 F. Supp. 3d at 1261. If the seas
beyond the safe harbor are so perilous that no one
risks a voyage, then the State has either compelled
speech that is not purely factual, or its regulations
impose an undue burden. See Am. Beverage Ass’n, 916
F.3d at 757 (holding State did not carry its burden
because warning “‘effectively rule[d] out the possibility
of having an advertisement in the first place’” and
that the disclosure “fail[ed] for that reason alone”
(quoting and citing NIFLA, 138 S. Ct. at 2378 (other
alterations omitted)); cf. CTIA, 928 F.3d at 848 (finding
disclosure regulation not unduly burdensome in part
because it permitted businesses to disclose “additional
information”). The State has not carried its burden to
show Proposition 65 warnings about acrylamide in
food are constitutional under Zauderer.
The State relies primarily on two cases to urge
the opposite conclusion. Both are readily distinguishable from this one. First, it cites the Second Circuit’s
App.69a
decision in National Electric Manufacturers’ Association
v. Sorrell, 272 F.3d 104 (2d Cir. 2001). The compelled
speech at issue in that case was a Vermont statute
requiring manufacturers to inform consumers if a
product contained “mercury added during manufacture.” Id. at 107 n.1. The warning was required to
“clearly inform the purchaser or consumer that mercury
is present” and that the product “may not be disposed
of . . . until the mercury is removed and reused, recycled,
or otherwise managed.” Id. The statute did not appear
to permit any private enforcement scheme analogous
to that created by Proposition 65. See id. at 107–08.
The Second Circuit agreed with Vermont that this
warning did not violate the manufacturers’ First
Amendment rights. See id. at 115–16. The manufacturers did not dispute that the warning was factual
and uncontroversial under Zauderer. See id. The
Second Circuit focused instead on the relationship
between the warning and Vermont’s interest in reducing
mercury pollution. See id. It found that relationship to
be obvious. Id. at 115. Here, by contrast, the State has
not shown that the safe-harbor acrylamide warning is
purely factual and uncontroversial, and Proposition
65’s enforcement system can impose a heavy litigation
burden on those who use alternative warnings.
Second, the State relies on the Ninth Circuit’s
decision in CTIA v. City of Berkeley, 928 F.3d 832.
Berkeley required cell phone retailers to give the
following warning:
To assure safety, the Federal Government
requires that cell phones meet radio-frequency
(RF) exposure guidelines. If you carry or use
your phone in a pants or shirt pocket or
tucked into a bra when the phone is ON and
App.70a
connected to a wireless network, you may
exceed the federal guidelines for exposure to
RF radiation. Refer to the instructions in
your phone or user manual for information
about how to use your phone safely.
Id. at 838 (quoting Berkeley Mun. Code § 9.96.030(A)
(2015)). The city permitted retailers to add “other
information” to the warning at their discretion “as
long as that information is distinct from the notice
language.” Id. (quoting Berkeley Mun. Code § 9.96.
030(B) (2015)). The plaintiffs argued that the warning
was neither factual nor uncontroversial because it
implied incorrectly that cell phones emit dangerous
radiation. See id. at 846. The Ninth Circuit disagreed
and upheld the warning under Zauderer. See id. at
843-49.
California’s acrylamide warning differs from Berkeley’s radiation warning in three ways that, on this
record, show that the State’s warning is unlikely to
survive the Chamber’s First Amendment challenge.
First, here, although Berkeley’s warning hinted at
potential dangers, for example by referring vaguely to
“safety,” cf. id. at 853-55 (Friedland, J., dissenting), its
text was a purely factual summary of federal regulation
about radio frequency radiation. The cell phone retailers
did not even argue that the radiation disclosure was
“controversial as a result of disagreement about whether
radio-frequency radiation can be dangerous to cell
phone users.” Id. at 848. The State’s acrylamide warning language, by contrast, states without qualification
that the acrylamide in the particular food identified is
“known to cause cancer.” The truth of that statement
is the subject of controversy. The State urges this
court to draw a contrast between the hot political and
App.71a
moral controversy at issue in NIFLA, abortion, and the
Chamber’s disagreement about whether acrylamide
causes cancer, along the lines of the Ninth Circuit’s
opinion in CTIA. See Opp’n Prelim. Inj. at. 14 (citing
928 F.3d at 845). The court declines to draw that
distinction. A controversy may prevent Zauderer from
applying even if it is not political. See, e.g., Nat’l Ass’n
of Mfrs., 800 F.3d at 530 (holding compelled warnings
about whether mineral was “conflict free” were controversial).
Second, in CTIA, federal regulations had already
required cell phone manufacturers to disclose the
same or similar information as the Berkeley ordinance
required of retailers. See 928 F.3d at 840-41. Here, no
other public health body has warned that acrylamide in
food causes cancer in people or has even reached that
conclusion. No regulatory or public health authority
has advised against consuming foods with acrylamide.
Third, unlike the Berkeley ordinance, Proposition
65 does not permit businesses to add information to
the required warning at their discretion, and thus
prevents them from explaining their views on the true
dangers of acrylamide in food. That prohibition
exacerbates the effect of the warning. It threatens to
“drown out” a business’s “messaging” addressing the
claimed dangers of acrylamide in food. See id. at 849.
The court thus concludes the Chamber of Commerce is likely to show the acrylamide warning required
by Proposition 65 is controversial and not purely factual.
The warning is therefore unlikely to be permissible
under Zauderer.
It is unclear whether a further analysis under some
other more stringent constitutional test is necessary.
App.72a
On the one hand, in American Beverage Association,
the Circuit held that the plaintiff was likely to succeed
on the merits immediately after deciding that the
defendant had not carried its burden under Zauderer.
See 961 F.3d at 757–58. But on the other hand, in a
footnote, the Circuit suggested that an analysis under
a “higher standard” was still necessary, although it
left little doubt that if a claim does not meet the “lower
standard” of Zauderer, it could not meet any “higher
standard” either. See id. at 757 n.5. It is also unclear
what that “higher standard” would be. The Chamber
and the State both assume the correct test is the one
described in Central Hudson. See Chamber’s Mot. at
16-18; State Opp’n at 16-17. But in CTIA, the Circuit
made clear that “Central Hudson’s intermediate
scrutiny test does not apply to compelled, as distinct
from restricted or prohibited, commercial speech.” 928
F.3d at 842.
This court assumes without deciding that an
analysis under a heightened standard of constitutional
scrutiny is necessary and that the correct constitutional
test is the “intermediate” level of scrutiny described in
Central Hudson: “the government may restrict or
prohibit commercial speech that is neither misleading
nor connected to unlawful activity, as long as the governmental interest in regulating the speech is
substantial.” CTIA, 928 F.3d at 842 (citing 447 U.S. at
564). “The restriction or prohibition must ‘directly
advance the governmental interest asserted,’ and
must not be ‘more extensive than is necessary to serve
that interest.’” Id. (quoting 447 U.S. at 566).
“There is no question that protecting the health
and safety of consumers is a substantial government
interest.” CTIA, 928 F.3d at 845. California therefore
App.73a
has a substantial interest in protecting its citizens
from substances that cause cancer. But at this stage
of the litigation, the Chamber has shown the warning
the State demands likely does not “directly advance”
that interest and is “more extensive than necessary.”
Cent. Hudson, 447 U.S. at 566. As discussed above,
the safe harbor warning is incorrect, and it implies
misleadingly that the science about the risks of foodborne acrylamide is settled. In setting the statewide
rules applicable to all, state regulators have also
rejected alternative, less controversial language than
the safe harbor language. If a business decides not to
use the safe harbor warning, it risks expensive and
lengthy litigation against private enforcers or the
State, and defendants carry heavy evidentiary burdens
if they attempt to show their products contain permissibly small quantities of acrylamide. The State also has
many alternatives to compelled private speech at its
disposal. It can fund scientific research and pursue
public awareness campaigns, for example. Regulators
could also modify safe harbor warnings to eliminate
inaccuracies and controversial statements.
The Chamber is thus likely to show the Proposition
65 acrylamide warning falls short of the Central
Hudson test. If a law fails the “intermediate” test of
Central Hudson, it also fails the more stringent test
that applies to content-based restrictions in general.
See NIFLA, 138 S. Ct. at 2375. The Chamber is likely to
succeed on the merits of its First Amendment claims.21
21 The court does not reach the Chamber’s facial challenge. See
Chambers Mem. at 18.
App.74a
C. Harms and the Public Interest
A likelihood of success on the merits does not
alone entitle the Chamber to a preliminary injunction.
It must also show it would suffer irreparable harm if
new Proposition 65 enforcement actions can be filed
while this lawsuit is pending and that this harm
outweighs the State’s and the public’s interest in
those enforcement actions. See Winter, 555 U.S. at 20.
“Irreparable harm is relatively easy to establish
in a First Amendment case.” CTIA, 928 F.3d at 851.
Because the Chamber has a “colorable First Amendment claim,” it has demonstrated it “likely will suffer
irreparable harm” if Proposition 65 warnings against
acrylamide can be enforced while this litigation is
pending. Am. Bev. Ass’n, 916 F.3d at 758.
California argues the Chamber cannot show it
would suffer any irreparable harm because its members
have known for so long that acrylamide is found in
foods. See State Opp’n at 18-19. As the Chamber
points out, however, its decision to file this lawsuit
now is in response to a recent increase in private
enforcement actions. See Chamber’s Mot. at 8 (“[S]ince
[the Chamber] filed its complaint, private enforcers
have served 391 pre-litigation notices and filed 43 new
Proposition 65 lawsuits in state courts for alleged
exposures to acrylamide in food.”); Chamber’s Reply
at 12-13 (“In 2019 alone, there were 205 notices (up
from 147 notices in 2018), and private enforcers show
no signs of slowing down, serving more than 400 notices
to date in 2020.”); see also ECF Nos. 15, 37, 58, 86, 97,
111 (collecting new notices and private enforcement
actions). The cases the State cites are also not comparable to this one. The Chamber of Commerce is not
in the same position as a person who waits several
App.75a
months to assert a copyright claim after she finds the
allegedly infringing video on the internet. Cf. Garcia
v. Google, Inc., 786 F.3d 733, 746 (9th Cir. 2015) (en
banc). Nor is it in the position of a newspaper that
inexplicably delays in asserting a claim that its rival
stole its subscribers and harmed its reputation. Cf.
Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d
1374, 1377 (9th Cir. 1985). And unlike the plaintiff in
Lydo, the Chamber has shown it has likely suffered a
First Amendment injury. Cf. Lydo Enters. v. Las Vegas,
745 F.2d 1211, 1213-14 (9th Cir. 1984).
As for the balance of harms and the public interest,
although a state “suffers a form of irreparable injury”
any time it is “enjoined by a court from effectuating
statutes,” New Motor Vehicle Bd. of Cal. v. Orrin W.
Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J.,
Circuit Justice), the Ninth Circuit has “consistently
recognized the significant public interest in upholding
First Amendment principles,” Am. Bev. Ass’n, 916
F.3d at 758 (quoting Doe v. Harris, 772 F.3d 563, 583
(9th Cir. 2014)). “[I]t is always in the public interest
to prevent the violation of a party’s constitutional
rights.” Id. (quoting Melendres v. Arpaio, 695 F.3d
990, 1002 (9th Cir. 2012)). The injunction requested
here is also quite narrow, as noted above. It leaves
private parties and the State with many tools for
increasing public awareness about the risks of acrylamide in foods. CERT and other private enforcers can
send demand letters and notices of violations. They
can litigate existing claims and pursue appeals. They
can pursue public relations campaigns. They can fund
research. They can buy advertisements.
The State argues a preliminary injunction would
create uncertainty because businesses might argue it
App.76a
permits them to modify consent decrees already in
place. See Cal. Opp’n at 20 (citing 3750 E. Foothill
Blvd., Inc. v. City of Pasadena, 912 F. Supp 1257, 1260
(C.D. Cal. 1995) (explaining injunctions that “change
the status quo are viewed with hesitancy and carry a
heavy burden of persuasion” (citation and quotation
marks omitted)). The Chamber does not request that
relief, however. See Chamber’s Reply at 13. The court
sees no reason to award it. This order does not alter
existing consent decrees, settlements, or other agreements. For example, this order does not permit businesses that have already agreed to display a certain
warning do take those warnings down, and businesses
that have agreed to reformulate their products to reduce
acrylamide content are not permitted by this order to
breach those agreements.
Finally, the State cautions that enjoining an
aspect of Proposition 65, even preliminarily, would
invite challenges to other regulations about carcinogens
and reproductive toxins. See Cal. Opp’n at 20; see also
Nat’l Elec. Mfrs., 272 F.3d at 116 (“Innumerable
federal and state regulatory programs require the disclosure of product and other commercial information.”). The risk of misinterpretation or misuse of an
order is not lost on this court. California has a substantial and likely compelling interest in protecting
people from exposure to dangerous chemicals, including
chemicals that have been shown to cause cancer or
reproductive harm in experimental animals, even if
epidemiological evidence is inconclusive. Health and
safety warnings have “long been considered permissible.” NIFLA, 138 S. Ct. at 2376. The State may
ultimately show the Chamber is not entitled to a
permanent injunction. It may also move to dissolve
App.77a
the preliminary injunction, perhaps to permit the
enforcement of alternative warnings. But given the
record before the court at this juncture, these are
questions for another day.
IV. Conclusion
The Chamber of Commerce’s motion for a preliminary injunction is granted. CERT’s motion for summary
judgment is denied.
While this action is pending and until a further
order of this court, no person may file or prosecute a
new lawsuit to enforce the Proposition 65 warning
requirement for cancer as applied to acrylamide in
food and beverage products. This injunction applies to
the requirement that any “person in the course of
doing business” provide a “clear and reasonable
warning” for cancer before “expos[ing] any individual
to” acrylamide in food and beverage products under
California Health & Safety Code § 25249.6. It applies
to the Attorney General and his officers, employees, or
agents, and all those in privity or acting in concert
with those entities or individuals, including private
enforcers under section 25249.7(d) of the California
Health & Safety Code.
This order does not alter any existing consent
decrees, settlements, or other agreements related to
Proposition 65 warning requirements.
This order resolves ECF Nos. 93 and 95.
IT IS SO ORDERED.
/s/ Kimberly J. Mueller
Chief United States District Judge
Dated: March 29, 2021.
App.78a
ORDER OF THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
DENYING PETITION FOR REHEARING
(OCTOBER 26, 2022)
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
CALIFORNIA CHAMBER OF COMMERCE,
Plaintiff-Appellee,
v.
COUNCIL FOR EDUCATION AND RESEARCH ON
TOXICS, A CALIFORNIA PUBLIC BENEFIT CORPORATION,
Intervenor-DefendantAppellant.
________________________
No. 21-15745
D.C. No. 2:19-cv-02019- KJM-JDP
Eastern District of California, Sacramento
Before: GOULD, BENNETT, and R. NELSON,
Circuit Judges.
Judges Gould, Bennett, and Nelson have voted to
deny Appellant’s petition for rehearing en banc.
The full court has been advised of the petition for
rehearing en banc. An active judge requested a vote
App.79a
on whether to rehear the matter en banc. The matter
failed to receive a majority of votes of the non-recused
active judges in favor of en banc consideration. See
Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED.
App.80a
DISSENTING STATEMENT OF JUDGE
BERZON, WITH JUDGES WARDLAW,
WATFORD, KOH, AND SANCHEZ JOINING
The right to access the courts is one of “the most
precious of the liberties safeguarded by the Bill of
Rights.” United Mine Workers of Am., Dist. 12 v.
Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967). But
in this opinion, without basis in law or precedent, this
Court narrows that fundamental right. The panel
opinion closes the courtroom doors to all those seeking
to enforce provisions of California’s Proposition 65 with
respect to a chemical present in a wide range of food
products—on pain of contempt. In doing so, the panel
opinion expands the so-called “illegal objective” exception far beyond any prior decision of the Supreme
Court or the appellate courts: it allows a single judge
to enjoin potential plaintiffs from filing any sort of
lawsuit if the judge predicts that the lawsuits will fail
upon a defense grounded in a federal right. I object to
the panel’s unjustified curtailment of the First Amendment’s protections and of litigation norms and respectfully disagree with this Court’s refusal to reconsider
the panel opinion en banc.
I.
Enacted by the voters of California in 1986,
Proposition 65 is a “landmark” statute aimed at
protecting the public from exposure to toxic chemicals.
People ex rel. Lungren v. Superior Ct., 14 Cal. 4th 294,
315 (1996) (Baxter, J., dissenting). The statute provides
that “[n]o person in the course of doing business shall
knowingly and intentionally expose any individual to
a chemical known to the state to cause cancer or
App.81a
reproductive toxicity without first giving clear and
reasonable warning.” Cal. Health & Safety Code
§ 25249.6. Certain government officials (such as the
California Attorney General) and private litigants are
both statutorily authorized to bring actions to enforce
Proposition 65’s guarantees. Cal. Health & Safety
Code § 25249.7(c), (d).
In this case, the California Chamber of Commerce
(“CalChamber”) filed a complaint and motion for
preliminary injunction asking the district court to bar
“the Attorney General and all those in privity with
him from filing and/or prosecuting new lawsuits to
enforce the Proposition 65 warning requirement for
cancer as applied to acrylamide in food products.” The
Council for Education and Research on Toxics (“CERT”),
a non-profit with expertise in acrylamide warnings,
intervened in the lawsuit as a defendant. Rejecting
CERT’s argument that an injunction would constitute
an unlawful prior restraint in violation of its First
Amendment rights, the district court granted a preliminary injunction, providing that the injunction applied
to the Attorney General, his agents, and all “private
enforcers” of Proposition 65. After a motions panel of
this Court granted a stay of the injunction pending
appeal, the merits panel affirmed the injunction as to
CERT, holding that CERT had standing and that the
district court did not err in granting the preliminary
injunction—in part because the “illegal objective”
doctrine barred CERT’s prior restraint claim. See Cal.
Chamber of Com. v. Council for Educ. & Rsch. on
Toxics, 29 F.4th 468, 475-83 (9th Cir. 2022).
App.82a
II.
The merits panel’s opinion contradicts decades of
settled First Amendment precedent regarding the
“illegal objective” exception. The opinion transforms a
narrowly tailored labor law doctrine into a broad tool
permitting the preclusion of the filing of good-faith,
reasonably based lawsuits when a judge predetermines the merits of those lawsuits—or, in the case of
a preliminary injunction, predicts the likely merits.
Nothing in Supreme Court precedent sanctions such
a severe restriction on the First Amendment’s
protection of the right to petition for redress. This
Court should have reheard this case en banc.1
A.
The “illegal objective” doctrine originates from a
footnote in the Supreme Court’s decision in Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 737
n.5 (1983). A case about the National Labor Relations
Board’s (“NLRB”) authority to block retaliatory
employer lawsuits, Bill Johnson’s held that the NLRB
could enjoin “an improperly motivated suit lacking a
reasonable basis” under the National Labor Relations
1 The panel opinion declined to review an interlinked aspect of
the district court injunction: its breadth as to the parties covered.
See Cal. Chamber of Com., 29 F.4th at 482-83. In a lawsuit with
a single defendant (i.e., the California Attorney General) and one
intervenor (i.e., CERT), the district court issued an injunction
that applied to “all . . . private enforcers” of Proposition 65.
Under recent binding Supreme Court precedent, a federal court
may not issue “an injunction against any and all unnamed
private persons who might seek to bring their own . . . suits,”
even if the attorney general also has the authority to enforce the
law in question. Whole Woman’s Health v. Jackson, 142 S. Ct.
522, 535 (2021).
App.83a
Act (“NLRA”). Id. at 744. In footnote five, the Supreme
Court briefly noted an additional category of suit that
the NLRB had the authority to enjoin as well: “a suit
that has an objective that is illegal under federal
law.”2 Id. at 737 n.5.
Crucially, in its fleeting allusion to the “illegal
objective” exception, the Supreme Court spoke solely
about the NLRB’s authority to forbid litigation, not
that of any other body. Id. Such an exception had been
applied, the Court wrote, in two instances: (1) the
Court had previously “upheld Board orders enjoining
unions from prosecuting court suits for enforcement of
fines that could not lawfully be imposed under the
[NLRA]” and (2) the Court had once “concluded that,
at the Board’s request, a District Court may enjoin
enforcement of a state-court injunction ‘where [the
Board’s] federal power pre-empts the field.’” Id.
(alteration in original) (quoting N.L.R.B. v. NashFinch Co., 404 U.S. 138, 144 (1971)). In other words,
the “illegal objective” exception was a doctrine to
preserve the NLRB’s authority to decide issues of
labor law—a power delegated to the Board by Congress,
see San Diego Bldg. Trades Council v. Garmon, 359
U.S. 236, 244-45 (1959)—and to block litigants from
undercutting that authority once the NLRB had issued
its decisions.
2 The panel opinion exclusively relies on the “illegal objective”
exception as the basis for affirming the district court’s injunction,
explicitly distinguishing the “illegal objective” exception from
Bill Johnson’s “improperly motivated/reasonable basis” test. See
Cal. Chamber of Com., 29 F.4th at 481 n.16.
App.84a
B.
The panel opinion erred in its unprecedented
extension of the “illegal objective” exception beyond
the NLRB context. To my knowledge, every circuit
court decision invoking the “illegal objective” doctrine
over the past 40 years besides the panel opinion—has
faithfully applied the Supreme Court’s reasoning in
Bill Johnson’s and used the doctrine only in labor law
cases concerning the NLRB’s authority; in almost all of
those cases, the NLRB was a party.3 See, e.g., United
Nurses Ass’ns of Cal. v. N.L.R.B., 871 F.3d 767 (9th
Cir. 2017); Murphy Oil USA, Inc. v. N.L.R.B., 808 F.3d
1013 (5th Cir. 2015), aff’d sub nom. Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612 (2018); Sheet Metal Workers
Int’l Ass’n Loc. Union No. 27 v. E.P. Donnelly, Inc., 737
F.3d 879 (3d Cir. 2013); Small v. Operative Plasterers’
& Cement Masons’ Int’l Ass’n Loc. 200, 611 F.3d 483
(9th Cir. 2010); Wright Elec., Inc. v. N.L.R.B., 200 F.3d
1162 (8th Cir. 2000); Loc. 30, United Slate, Tile &
Composition Roofers, Damp & Waterproof Workers
Ass’n v. N.L.R.B., 1 F.3d 1419 (3d Cir. 1993); Chauffeurs,
Teamsters & Helpers Loc. 776 Affiliated With Int’l
Bhd. of Teamsters v. N.L.R.B., 973 F.2d 230 (3d Cir.
1992); Nelson v. Int’l Bhd. of Elec. Workers, Loc. Union
3 I was able to find only a single federal case applying the “illegal
objective” doctrine in a non-labor-law dispute: a district court
decision in United States v. Wagner, 940 F. Supp. 972 (N.D. Tex.
1996). Wagner contained no reasoning to justify its use of the
“illegal objective” exception outside the labor law context, and it
invoked both parts of Bill Johnson’s “improperly motivated/
reasonable basis” test in addition to the separate, “illegal
objective” test as the foundation for its decision, see id. at 980–82
(unlike the merits panel’s opinion which relied solely on the
“illegal objective” test, see Cal. Chamber of Com., 29 F.4th at
480–82).
App.85a
No. 46, 899 F.2d 1557 (9th Cir. 1990), overruled on
other grounds by Miller v. Cal. Pac. Med. Ctr., 19 F.3d
449 (9th Cir. 1994) (en banc); Int’l Longshoremen’s &
Warehousemen’s Union v. N.L.R.B., 884 F.2d 1407
(D.C. Cir. 1989). In fact, when the Tenth Circuit was
presented with the opportunity to extend the reach of
the “illegal objective” doctrine beyond its defined
limits in labor law—the only such instance that I have
found of an appellate court confronting the question—
the court refused, specifically grounding its analysis
in the Petition Clause. See CSMN Invs., LLC v.
Cordillera Metro. Dist., 956 F.3d 1276, 1283, 1289–90
(10th Cir. 2020). As the Tenth Circuit explained:
[G]ood reasons counsel against extending
this per se rule beyond the labor-relations
context. . . . By adopting an unlawful-objective
exception to Petition Clause immunity, we
would eliminate immunity even in cases in
which the party petitioning for redress does
so for benign reasons. We reject that result.
Petition Clause immunity exists to promote
access to the courts, allowing people to air
their grievances to a neutral tribunal. In
fact, “the ability to lawfully prosecute even
unsuccessful suits adds legitimacy to the
court system as a designated alternative to
force” and ensures that litigants can argue
for “evolution of the law.”
Id. at 1290 (quoting BE & K Const. Co. v. N.L.R.B.,
536 U.S. 516, 532 (2002)).
The panel opinion cites no cases to defend its
novel application of the “illegal objective” exception
and offers no reply to the Tenth Circuit’s persuasive
reasoning. See Cal. Chamber of Com., 29 F.4th at 480-
App.86a
82. Instead, the panel submits two cases—one about
an injunction against relitigation, Wood v. Santa
Barbara Chamber of Commerce, Inc., 705 F.2d 1515,
1523 (9th Cir. 1983), and another about intervention,
Orange County v. Air California, 799 F.2d 535, 537 (9th
Cir. 1986)4—and a fleeting reference to the All Writs
Act and the Anti-Injunction Act for the proposition
that federal courts may preliminarily enjoin lawsuits
in certain instances. See Cal. Chamber of Com., 29
F.4th at 481 & n.17. I do not dispute that federal
courts possess the authority to enjoin future litigation
in limited circumstances, usually linked to avoiding
repetitive or frivolous litigation. However, neither
case and neither law cited by the panel justifies a
federal court’s decision to enjoin a non-labor lawsuit
using the NLRB-protective “illegal objective” doctrine,
especially when no appellate court has done so before.
C.
The merits panel’s opinion compounds its error
by expanding the “illegal objective” exception even
further. In addition to applying the “illegal objective”
doctrine in a non-labor-law case for the first time at
the appellate level weakening the First Amendment
protection accorded to the instigation of good-faith,
non-frivolous litigation—the panel invokes the doctrine
without a final merits determination regarding whether
the lawsuit sought an illegal objective. See Cal.
Chamber of Com., 29 F.4th at 482. Put another way,
the panel opinion allows a court to enjoin an entire
class of non-labor lawsuits using a labor law doctrine
4 Orange County mentions an injunction in its fact section and
nowhere else in the opinion. 799 F.2d at 536-37.
App.87a
solely because the court predicts that the suits are
likely to fail on a federal law defense.
No precedent supports the panel’s new and
expansive exception to the Petition Clause, and none
should. There are established methods in the American
legal system to discourage and dispense with lawsuits
with viable federal defenses. A party may file a motion
to dismiss or motion for summary judgment. See Fed.
R. Civ. P. 12(b)(6), 56. If the offending lawsuit is based
on a statutory provision, a litigant may file an anticipatory, declaratory judgment suit seeking to declare
the statutory provision unconstitutional. See 28 U.S.C.
§ 2201; Fed. R. Civ. P. 5.1. But a preliminary injunction prohibiting plaintiffs from filing good-faith, nonfrivolous lawsuits is not an appropriate remedy. Goodfaith litigants should not be threatened with contempt
of court, and potentially fines or even incarceration to
compel compliance, see 18 U.S.C. § 401, because there
may be a valid federal defense to a lawsuit they may
wish to bring. The First Amendment protects “genuine”
but ultimately “unsuccessful” lawsuits, see BE & K
Const. Co., 536 U.S. at 532, and it ordinarily protects
non-NLRB-related lawsuits from being enjoined when
the success of the lawsuits—which definitionally have
yet to be filed—has not been finally determined.
***
The consequences of the panel opinion should not
be understated. As the Supreme Court has long held,
the right to petition the government is implied by
“[t]he very idea of a [republican] government.” United
States v. Cruikshank, 92 U.S. 542, 552 (1875); see Bill
Johnson’s, 461 U.S. at 741. With its unprecedented
expansion of the “illegal objective” exception, the panel
App.88a
significantly undermines the Petition Clause’s protections, permitting courts to enjoin litigation on pain of
contempt because one court forecasts that the litigation will fail against a federal defense. The laborspecific “illegal objective” exception does not countenance such an injunction for non-labor lawsuits.
Accordingly, I respectfully regret this Court’s decision
to deny rehearing en banc and its resulting effects on
litigants’ right to their day in court.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.