CRN recently joined a number of other consumer product trade associations in filing an amicus brief in an important Prop 65 case before the Ninth Circuit Court of Appeals. The case – National Association of Wheat Growers v. Bonta – involves First Amendment and other questions about the scope of Prop 65 that could have significant implications for other Prop 65 legal actions. In this case, the National Association of Wheat Growers challenged the listing of glyphosate (a pesticide) as a carcinogen under the Prop 65 statute because authoritative scientific bodies, including the U.S. Environmental Protection Agency (EPA), have disagreed with that determination. In June 2020, a federal district court agreed with the plaintiff that the listing violated the First Amendment because such listing could compel companies to have to make “misleading statements about glyphosate’s carcinogenicity, and the state’s knowledge of that purported carcinogenicity.” The California Attorney General appealed that decision, leading to the present Ninth Circuit case. 

This Ninth Circuit appeal is significant because a decision to uphold the lower court’s ruling could set the stage for future First Amendment challenges to other Prop 65 listings where the science is disputed. This could have important implications for supplements, such as challenging the 1,000-fold safety factor used to determine safe harbor levels for lead and cadmium. CRN joins a number of other trade associations, as well as the Washington Legal Foundation, in submitting amicus briefs in this appeal.   

Food companies received a Prop 65 win in late March in a similar case, when a California federal district court granted a preliminary injunction stopping entities from filing or prosecuting lawsuits for failure to include a Prop 65 cancer warning for acrylamide on food and beverages. This injunction was granted in response to a lawsuit by the California Chamber of Commerce (CalChamber), which made similar arguments to the Wheat Growers case that a warning for acrylamide was prohibited by the First Amendment because a warning that acrylamide is a “known” human carcinogen is not a “purely factual and uncontroversial” statement. More about that ongoing litigation can be found here from CRN Associate Member Arnold & Porter. 

Please reach-out to me with any questions about this ongoing Prop 65 litigation or other Prop 65 issues.