UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATIONAL ASSOCIATION OF No. 20-16758 WHEAT GROWERS; NATIONAL CORN GROWERS ASSOCIATION; D.C. No. UNITED STATES DURUM 2:17-cv-02401- GROWERS ASSOCIATION; WBS-EFB WESTERN PLANT HEALTH ASSOCIATION; MISSOURI FARM BUREAU; IOWA SOYBEAN OPINION ASSOCIATION; SOUTH DAKOTA AGRI-BUSINESS ASSOCIATION; NORTH DAKOTA GRAIN GROWERS ASSOCIATION; MISSOURI CHAMBER OF COMMERCE AND INDUSTRY; MONSANTO COMPANY; ASSOCIATED INDUSTRIES OF MISSOURI; AGRIBUSINESS ASSOCIATION OF IOWA; CROPLIFE AMERICA; AGRICULTURAL RETAILERS ASSOCIATION,

Plaintiffs-Appellees,

v. ROB BONTA, In His Official 2 NAWG V. BONTA

Capacity as Attorney General of the State of California,

Defendant-Appellant, and LAUREN ZEISE, In Her Official Capacity as Director of the Office of Environmental Health Hazard Assessment,

Defendant.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Argued and Submitted April 19, 2023 San Francisco, California

Filed November 7, 2023

Before: Mary M. Schroeder, Consuelo M. Callahan, and Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Callahan; Dissent by Judge Schroeder NAWG V. BONTA 3

SUMMARY *

First Amendment/Commercial Speech

The panel affirmed the district court’s grant of summary judgment in favor of plaintiffs and its entry of a permanent injunction enjoining the California Attorney General from enforcing Proposition 65’s carcinogen warning requirement for the herbicide glyphosate, best known as the active ingredient in the herbicide Roundup. In 2015, the International Agency for Research on Cancer (IARC) identified glyphosate as “probably carcinogenic” to humans. That conclusion is not shared by a consensus of the scientific community. As a result of the IARC identification, certain businesses whose products expose consumers to glyphosate were required to provide a Prop 65 warning that glyphosate is a carcinogen. Plaintiffs, a coalition of agricultural producers and business entities, asserted that Prop 65’s warning violated their First Amendment rights to be free from compelled speech. The government may only compel commercial speech if it can demonstrate that in so doing it meets the requirements of intermediate scrutiny. However, an exception applies to compelled commercial speech that is “purely factual and uncontroversial.” In that scenario, the government need only demonstrate the compelled speech survives a lesser form of scrutiny akin to a rational basis test.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 NAWG V. BONTA

The panel concluded that the government’s proposed Prop 65 warnings as applied to glyphosate were not purely factual and uncontroversial, and thus were subject to intermediate scrutiny. The proposed warning that “glyphosate is known to cause cancer” was not purely factual because the word “known” carries a complex legal meaning that consumers would not glean from the warning without context and thus the word was misleading. Moreover, saying that something is carcinogenic or has serious deleterious health effects— without a strong scientific consensus that it does—is controversial. As to the most recent warning proposed by the California Office of Environmental Health Hazard Assessment (OEHHA), the panel held that the warning still conveys the overall message that glyphosate is unsafe, which is, at best disputed. The warning therefore requires plaintiffs to convey a controversi