Nawg v. Rob Bonta

FOR PUBLICATION

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 controversial, fiercely contested message that
they fundamentally disagree with.
Applying intermediate scrutiny, the panel held that
because none of the proposed glyphosate Prop 65 warnings
were narrowly drawn to advancing California’s interest in
protecting consumers from carcinogens, and California had
less burdensome ways to convey its message than to compel
plaintiffs to convey it for them, the Prop 65 warning
requirement as applied to glyphosate was unconstitutional.
Dissenting, Judge Schroeder wrote that the panel should,
at the very least, remand the new OEHHA warning to the
district court to consider its sufficiency in the first
instance. Judge Schroeder stated that: (1) there is no
Supreme Court guidance on compelled commercial speech
in the sphere of product liability and consumer protection
and the majority’s reliance on an opinion addressing
compelled speech in the context of access to abortion was
 NAWG V. BONTA 5

misplaced; (2) the majority refused to look at the actual
content of the recent OEHHA warning to determine whether
it consisted of factually accurate information and instead
assessed the warning’s overall message; and (3) there was a
strong reason for the district court to reconsider the scientific
record. In Judge Schroeder’s view, the new OEHHA
warning fulfills the requirements of Prop 65, the validity of
which was not questioned.

COUNSEL

Laura J. Zuckerman (argued), Supervising Deputy Attorney
General; Dennis A. Ragen, Andrew J. Wiener, Harrison M.
Pollak, David Zonana, and Megan K. Hey, Deputy Attorneys
General; Edward H. Ochoa, Senior Assistant Attorney
General; Rob M. Bonta, California Attorney General;
California Attorney General’s Office, Oakland, California;
for Defendants-Appellant.
Richard P. Bress (argued), Philip J. Perry, Andrew D. Prins,
Tyce R. Walters, and Nicholas L. Schlossman, Latham &
Watkins LLP, Washington, D.C.; Catherine L. Hanaway,
Matthew T. Schelp, Matthew P. Diehr, and Natalie R.
Holden, Husch Blackwell LLP, St. Louis, Missouri;
Christopher C. Miles, Husch Blackwell LLP, Kansas City,
Missouri; Ann M. Grottveit, Kahn Soares & Conway LLP,
Sacramento, California; Trenton H. Norris, Hogan Lovells
LLP, San Francisco, California; Stewart D. Fried and Gary
H. Baise, Olsson Frank Weeda Terman Matz PC,
Washington, D.C.; Richard D. Gupton, Agricultural
Retailers Association, Arlington, Virgina; for Plaintiffs-
Appellees.
6 NAWG V. BONTA

Paul J. Napoli and Hunter J. Shkolnik, NS PR Law Services
LLC, Hato Rey, Puerto Rico; Thomas C. Goldstein, Eric F.
Citron, Charles Davis, Daniel Woofter, and Molly Runkle,
Goldstein & Russell PC, Bethesda, Maryland; for Amicus
Curiae National Black Farmers Association.
Vivian H.W. Wang, Natural Resources Defense Council,
New York, New York; Avinash Kar, Natural Resources
Defense Council, San Francisco, California; for Amici
Curiae Natural Resources Defense Council, United
Steelworkers, Alliance of Nurses for Healthy Environments,
As You Sow, Californians for Pesticide Reform, Center for
Food Safety, Clean Water Action, Environmental Law
Foundation, Pesticide Action Network North America
(PANNA), and San Francisco Bay Physicians for Social
Responsibility.
Seth E. Mermin, Public Good Law Center, Berkeley,
California; Eliza Duggan, Center for Consumer Law and
Economic Justice; Claudia Polsky, Assistant Clinical
Professor of Law; UC Berkeley School of Law, Berkeley,
California; for Amicus Curiae UC Berkeley Center for
Consumer Law & Economic Justice.
Cory L. Andrews and John M. Masslon II, Washington
Legal Foundation, Washington, D.C., for Amicus Curiae
Washington Legal Foundation.
Mary-Christine Sungaila, Complex Appellate Litigation
Group LLP, Newport Beach, California; Joshua R. Ostrer
and Lauren Jacobs, Buchalter APC, Irvine, California; Kari
Fisher, Senior Counsel, California Farm Bureau Federation,
Sacramento, California; for Amici Curiae California Farm
Bureau Federation, California Cotton Ginner & Growers
Association, Western Agricultural Processors Association,
California Fresh Fruit Association, and California Citrus
 NAWG V. BONTA 7

Mutual.
Tara S. Morrissey and Stephanie A. Maloney, U.S. Chamber
Litigation Center, Washington, D.C.; Erika C. Frank and
Heather Wallace, California Chamber of Commerce,
Sacramento, California; Pratik A. Shah, James E. Tysse, and
Lide E. Paterno, Akin Gump Strauss Hauer & Feld LLP,
Washington, D.C.; for Amici Curiae Chamber of Commerce
of the United States of America and The California Chamber
of Commerce.
Jonathan L. Williams, Jonathan L. Williams PA,
Tallahassee, Florida, for Amici Curiae Risk-Mitigation
Scholars.
Gary Roberts, Denton US LLP, Los Angeles, California;
Sarah R. Choi, Dentons US LLP, San Francisco, California;
for Amici Curiae California League of Food Producers,
California Manufacturers & Technology Association,
California Restaurant Association, California Retailers
Association, Civil Justice Association Of California,
American Beverage Association, American Chemistry
Council, American Frozen Food Institute, American Spice
Trade Association, Consumer Brands Association,
Consumer Healthcare Products Association, Council for
Responsible Nutrition, Frozen Potato Products Institute,
Juice Products Association, Peanut and Tree Nut Processors
Association, and Snac International.
8 NAWG V. BONTA

OPINION

CALLAHAN, Circuit Judge:

This case involves the application of California
Proposition 65’s (Prop 65) “warning requirement” to a
chemical called glyphosate. Glyphosate is a widely used
herbicide in multiple settings and is best known as the main
active ingredient in Roundup, a herbicide manufactured by
Monsanto Company. In 2015, the International Agency for
Research on Cancer (IARC) identified glyphosate as
“probably carcinogenic” to humans. As a result, under the
current regulatory scheme implementing Prop 65, the
California Office of Environmental Health Hazard
Assessment (OEHHA) was required to place glyphosate on
the State’s list of known carcinogens. Due to that listing,
Prop 65 also requires certain businesses whose products
expose consumers to glyphosate to provide a clear and
reasonable warning to those consumers that glyphosate is a
carcinogen. While IARC is of the view that glyphosate is
probably carcinogenic to humans, that conclusion is not
shared by a consensus of the scientific community.
Plaintiffs are a coalition of agricultural producers and
business entities that sell glyphosate-based herbicides, use
glyphosate to cultivate their crops, or process such crops into
foods sold in California. Fearing, among other things, the
possible risk of private enforcement actions, Plaintiffs
sought to enjoin the California Attorney General (Attorney
General) from enforcing Prop 65’s warning requirement for
glyphosate on the ground that the warning requirement
violated their First Amendment rights to be free from
compelled speech. Throughout this litigation, the Attorney
General has offered several versions of a Prop 65 warning
 NAWG V. BONTA 9

that he contends comply with the First Amendment. And
most recently, the Attorney General contends that OEHHA
finalized a regulation permitting a version of the warning
that it views to be compliant with the requirements of Prop
65.
Under our First Amendment caselaw, 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.
We conclude that the Prop 65 warning as applied to
glyphosate—in any form that has been presented to this
Court—is not purely factual and uncontroversial, and thus is
subject to intermediate scrutiny. Because the Attorney
General fails to meet that standard, we affirm the district
court’s grant of summary judgment and entry of a permanent
injunction.
FACTUAL BACKGROUND
A. Background on Prop 65
Prop 65, also known as the Safe Drinking Water and
Toxic Enforcement Act, was enacted by California voters as
a ballot initiative on November 4, 1986. See Cal. Health &
Safety Code §§ 25249.5–25249.14. Among other things, it
requires the Governor to publish a “list of those chemicals
known to the state to cause cancer or reproductive toxicity
within the meaning of this chapter” at least once per year
(Prop 65 List). Id. § 25249.8(a). The relevant operative
provision of Prop 65 requires businesses to give a “clear and
10 NAWG V. BONTA

reasonable warning” to any individual they are “knowingly
and intentionally expos[ing]” to such chemicals. Id.
§§ 25249.5, 25249.6. Businesses that violate this provision
are subject to civil penalties of up to $2,500 per day for each
violation. Id. § 25249.7(b)(1).
Prop 65 features both public and private enforcement
mechanisms. It may be enforced by government officials
including the Attorney General, any district attorney, and
some city attorneys or city prosecutors. See id. § 25249.7(c).
Under certain conditions, such as providing notice to the
violator and the Attorney General, any person may bring a
private action in the public interest to enforce Prop 65
compliance. Id. § 25249.7(d)–(d)(1). The private citizen
enforcement provision was included in the statute to enhance
enforcement of Prop 65 and deter violations, see
Yeroushalmi v. Miramar Sheraton, 106 Cal. Rptr. 2d 332,
339 (Cal. Ct. App. 2001) (analyzing Historical and Statutory
notes of the statute), but citizen enforcement lawsuits are
often controversial, see, e.g., Consumer Defense Group v.
Rental Housing Industry Members, 40 Cal. Rptr. 3d 832,
834–35, n.1 (Cal. Ct. App. 2006), as modified (Apr. 20,
2006) (criticizing self-proclaimed “bounty hunters” for
bringing litigation “obviously” for the purpose of wanting
“to get paid hefty fees”). 1

1
There are few limiting factors that prevent such private enforcement
suits. For example, if the Attorney General upon review finds the basis
for such a suit lacks merit, he is required to issue the prospective litigant
a letter stating the lawsuit has no merit. Cal. Health & Safety Code
§ 25249.7(e)(1)(A). However, that letter has no preclusive effect on the
recipient’s ability to bring the lawsuit nonetheless. See id.
§ 25249.7(d)(2).
 NAWG V. BONTA 11

1. Listing Mechanisms
As described above, the Prop 65 List is implemented by
OEHHA. Cal. Health & Safety Code § 25249.12(a).
Section 25249.8 provides for four separate “mechanisms”
for a chemical to be listed. Id. § 25249.8(a)–(b). Relevant
here, under the “Labor Code listing mechanism,” OEHHA is
required to publish on the Prop 65 List carcinogenic
substances as required by the California Labor Code. Id.
§ 25249.8(a). Specifically, the list shall include
“[s]ubstances listed as human or animal carcinogens by the
International Agency for Research on Cancer (IARC).” Id.;
Cal. Lab. Code § 6382(b)(1). If a chemical meets the criteria
required for listing under the Labor Code listing mechanism,
OEHHA’s role in placing it on the Prop 65 List is simply
“ministerial.”
2. Warning Requirement and Exemptions
Once a chemical is placed on the Prop 65 List, it is also
subject to the attendant “warning requirement” unless an
exemption applies. Cal. Health & Safety Code §§ 25249.6,
25249.10. Absent an exemption, the statute requires any
business with 10 or more employees 2 to provide a “clear and
reasonable” warning before it “knowingly and intentionally
expose[s] any individual [in California] to a chemical known
to the state to cause cancer . . . .” Id. § 25249.6.
The statute includes three exemptions. First, if the
warning would be preempted by federal law, id.
§ 25249.10(a); second, if the exposure takes place within
twelve months of the chemical’s placement on the Prop 65

2
“Person in the course of business” statutorily excludes businesses with
fewer than 10 employees, any city, county, or district, and any federal or
state agency. Cal. Health & Safety Code § 25249.11(b).
12 NAWG V. BONTA

List, id. § 25249.10(b); and third, if the business can prove
that there is “no significant risk” assuming a lifetime
exposure at the level in question (NSRL safe harbor), id.
§ 25249.10(c). The NSRL safe harbor means no more than
1 in 100,000 people are calculated to get cancer assuming
lifetime exposure. Cal. Code Regs. tit. 27, § 25703(b).
Businesses can either rely on the NSRL safe harbor
established by OEHHA or can attempt to prove that exposure
at an alternative level similarly poses no significant risk by
employing their own experts. See id. § 25705; Cal. Health
& Safety Code § 25249.10(c).
3. Warning Label Content
The Health and Safety Code provides that the content of
the warning must be “clear and reasonable” that the chemical
is “known to the state to cause cancer,” or “words to that
effect.” Cal. Health & Safety Code § 25249.6; Dowhal v.
SmithKline Beecham Consumer Healthcare, 12 Cal. Rptr. 3d
262, 265 (Cal. 2004). The regulations implementing Prop
65 also provide guidance regarding appropriate methods and
content for businesses to provide consumers a “clear and
reasonable warning.” See Cal. Code Regs. tit. 27, §§ 25601–
25603. For example, for purposes of statutory compliance,
OEHHA has adopted various “safe harbor” warnings (not to
be confused with the NSRL safe harbor) that are
presumptively “clear and reasonable.” See id. § 25603(a)–
(b). For instance, a business may provide a warning that
consists of a “yellow equilateral triangle with a bold black
outline” and the word “WARNING” appearing in bold print
and capital letters, along with the words “This product can
expose you to chemicals including [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.” Id. § 25603(a)(1)–(2).
 NAWG V. BONTA 13

Alternatively, businesses may provide a “short-form”
warning, consisting of the same symbol and the word
“WARNING” in bold print and capital letters, along with
the words “Cancer – www.P65Warnings.ca.gov.” Id.
§ 25603(b)(1)–(2).
While use of a safe harbor warning is optional, electing
to do so has significant benefits because it shields the
business from exposure to potential private enforcement
lawsuits. In the event that a business chooses to utilize its
own Prop 65 warning, whether that formulation is clear and
reasonable is normally a “question of fact to be determined
on a case by case basis.” Ingredient Commc’n Council, Inc.
v. Lungren, 4 Cal. Rptr. 2d 216, 219 & n.3 (Cal. Ct. App.
1992), as modified (Feb. 14, 1992) (quoting OEHHA’s
explanation in a Final Statement of Reasons on the
interpretation of non-safe harbor warnings).
B. The Scientific Debate Surrounding Glyphosate
Since its introduction in 1974, glyphosate has become
the world’s most commonly used herbicide and is approved
for use in more than 160 countries. In California, it is used
in a variety of agricultural and commercial settings by
private businesses and agencies alike. Given its broad usage,
it is not surprising that glyphosate also happens to be one of
the world’s most studied chemicals. The parties in this case
agree that there is no scientific consensus that glyphosate is
a carcinogen. While IARC has concluded that glyphosate
poses some carcinogenic hazard, federal regulators,
California regulators, and several international regulators
have all concluded that glyphosate does not pose a
carcinogenic hazard. No agency or regulatory body
(including IARC) has concluded that glyphosate poses a
carcinogenic risk, which is distinct from a carcinogenic
14 NAWG V. BONTA

hazard. See Monsanto Co. v. OEHHA, 231 Cal. Rptr. 3d 537,
542 (Cal. Ct. App. 2018) (noting that IARC only determines
“whether an agent is capable of causing cancer but do[es]
not consider the likelihood cancer will occur”). As the
Attorney General observes, the distinction between hazard
and risk is significant. In this context, a hazard indicates that
at some theoretical level of exposure, the chemical is capable
of causing cancer. Risk, on the other hand, is the likelihood
that cancer will occur at a real-world level of exposure. At
its core, the function of Prop 65 is to inform consumers of
risks, not hazards. See Cal. Code Regs. tit. 27, § 25701
(explaining why a certain chemical need not include the
statutory warning if it “poses no significant risk” (emphasis
added)).
1. IARC and the 2015 Study
IARC is an agency based in Lyon, France, founded to
promote international collaboration in cancer research
among several participating countries and the World Health
Organization (WHO). IARC’s Governing Council appoints
“working groups” of scientific experts that prepare
“monographs” on the carcinogenic hazards of chemicals.
IARC selects chemicals (also referred to as “agents”) for
review “on the basis of two main criteria: (a) there is
evidence of human exposure and (b) there is some evidence
or suspicion of carcinogenicity.” The working group
ultimately classifies the selected chemicals into one of four
categories: Group 1, 2A, 2B, or 3. 3

3
Group 1 (carcinogenic to humans – based on “sufficient evidence of
carcinogenicity in humans”); Group 2A (probably carcinogenic to
humans – based on “limited evidence of carcinogenicity in humans” or
 NAWG V. BONTA 15

From March 3, 2015, to March 10, 2015, an IARC
working group convened to study several herbicides,
including glyphosate. The 17-member working group
reviewed existing epidemiological and cancer case-control
studies, studies of cancer in experimental animals, and
“mechanistic and other relevant data.” In a 78-page
monograph, the working group classified glyphosate as a
Group 2A agent, or “probably carcinogenic to humans,”
based on “limited evidence” in humans and “sufficient
evidence” in experimental animals.
2. EPA’s Views
On the other hand, among other groups monitoring
carcinogens, the Environmental Protection Agency (EPA)
has concluded that glyphosate does not pose a cancer hazard
or risk to humans. As part of its regulatory function, EPA
evaluates cancer hazards to humans—including
carcinogenicity—before granting registration for
commercial use. See 7 U.S.C. §§ 136(bb), 136a(c)(5)(C)–
(D); see also 21 U.S.C. §§ 342(a), 331(b), 346a. EPA first
issued a registration for glyphosate in 1986 and has
continually renewed its registration since. EPA has
extensively studied glyphosate and documented its findings
through a series of papers, letters, and memoranda. In 2017,
EPA released an extensive issue paper evaluating the
carcinogenic potential of glyphosate and concluded that

“sufficient evidence of carcinogenicity in animals”); Group 2B (possibly
carcinogenic to humans – based on “limited evidence of carcinogenicity
in humans” and “less than sufficient evidence of carcinogenicity in
animals” or “inadequate evidence of carcinogenicity in humans” but
“sufficient evidence of carcinogenicity in animals”); and Group 3 (not
classifiable as to its carcinogenicity to humans – based on “inadequate”
evidence of carcinogenicity in humans and “inadequate or limited”
evidence of carcinogenicity in animals).
16 NAWG V. BONTA

“[t]he available data at this time does no[t] support a
carcinogenic process for glyphosate.” In 2018, EPA released
a memorandum that, in part, addressed IARC’s 2015 study.
EPA reiterated that its own finding of no carcinogenic
potential was consistent with regulatory authorities from
around the world, and attacked IARC’s methodology
because IARC only “considered a subset of the studies
included in the Agency’s evaluation” and included
inappropriate data sets, such as genotoxicity studies of non-
mammalian species such as worms, fish, and reptiles. EPA
pointed out that IARC’s publications were not subject to
external peer review and the “conclusions [were] not well
described.” Finally, EPA noted that IARC’s meetings lacked
transparency to the public and did not allow for public
comment.
In 2019, EPA again reiterated its conclusion that
glyphosate was “not likely to be carcinogenic to humans.” It
noted that it would not approve the registration of
glyphosate-based pesticides bearing a Prop 65 warning
because doing so would violate the statutory requirement
that a product must not be misbranded by containing a “false
and misleading statement.” In 2020, during the most recent
registration renewal review, EPA issued an interim review
decision reevaluating glyphosate’s registration. In that
decision, it reiterated: “EPA has thoroughly evaluated
potential human health risk associated with exposure to
glyphosate and determined that there are no risks to human
health from the current registered uses of glyphosate and that
glyphosate is not likely to be carcinogenic to humans.” 4

4
As discussed infra, a panel of this court vacated a portion of this
decision under a substantial evidence review in June 2022.
 NAWG V. BONTA 17

3. Other Scientific Views
The agency tasked with primary regulation of Prop 65 in
California, OEHHA, has twice evaluated glyphosate’s
potential carcinogenicity in drinking water and twice
determined that it was unlikely to present a cancer hazard to
humans. Since 2007, OEHHA has not reevaluated its
findings or conclusion regarding the potential
carcinogenicity of glyphosate.
Like EPA and OEHHA, a significant number of
international regulatory authorities and organizations
disagree with IARC’s conclusion that glyphosate is a
probable carcinogen. Global studies from the European
Union, Canada, Australia, New Zealand, Japan, and South
Korea have all concluded that glyphosate is unlikely to be
carcinogenic to humans.
In sum, while IARC deems glyphosate “probably
carcinogenic to humans,” as the district court observed,
“apparently all other regulatory and governmental bodies
have found the opposite.” Although these government
agencies and regulatory bodies tend to disagree over the
terminology used, the data sets used, use of public comments
and peer review, and much more, suffice it to say, there is a
robust debate about the carcinogenicity of glyphosate.
PROCEDURAL HISTORY
After IARC released its March 2015 monograph
classifying glyphosate as “probably carcinogenic to
humans,” on September 4, 2015, OEHHA issued a notice of
its intent to add glyphosate to the Prop 65 List. OEHHA
stated that it intended to place glyphosate on the list under
the Labor Code listing mechanism and invited the public to
18 NAWG V. BONTA

provide comments. OEHHA then placed glyphosate on the
Prop 65 List, effective July 7, 2017. 5
A. District Court Lawsuit
Plaintiffs filed this action against the Attorney General 6
in the Eastern District of California on November 15, 2017,
bringing claims under the First Amendment, the Supremacy
Clause, and the Due Process Clause, seeking declaratory and
injunctive relief. Plaintiffs filed their operative First
Amended Complaint on December 5, 2017. In broad terms,
Plaintiffs allege they face a Hobson’s choice. On the one
hand, they could comply with Prop 65 by placing the
warning label on their respective products, but this would
“communicate a disparaging health warning with which they
disagree.” On the other hand, if they elect not to place a
warning label—arguing their products’ glyphosate exposure
levels fall below the NSRL—they would face tremendous
risk and costs defending against potential enforcement
actions.
B. Preliminary Injunction
On December 6, 2017, Plaintiffs moved for a preliminary
injunction on their First Amendment claim. Plaintiffs argued

5
Monsanto sued OEHHA in California state court alleging that
placement of glyphosate on the Prop 65 List violated the California and
United States Constitutions. The trial court rejected these claims and the
California Court of Appeal affirmed. See Monsanto Co. v. OEHHA, No.
16CECG00183, 2017 WL 3784247 (Fresno County Superior Court,
March 10, 2017), aff’d 231 Cal. Rptr. 3d 537 (Cal. Ct. App. 2018).
Appellants raised similar arguments in the district court but here have
elected to focus on their compelled speech claim stemming from the Prop
65 warning requirement.
6
Plaintiffs also sued OEHHA’s director, Dr. Lauren Zeise, in her official
capacity, but she was later dismissed by stipulation.
 NAWG V. BONTA 19

that they were likely to succeed on their claim that a
compelled warning that glyphosate causes cancer violates
the First Amendment. Specifically, Plaintiffs contended that
the compelled warning failed under Zauderer because it was
not “purely factual and uncontroversial.” Zauderer v. Off. of
Disciplinary Couns. of Sup. Ct. of Ohio, 471 U.S. 626, 651
(1985). Plaintiffs also asserted that the balance of the
equitable factors, under Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20 (2008), favored injunctive
relief.
On February 26, 2018, the district court issued a
memorandum and order granting Plaintiffs’ motion in part.
The district court concluded that the Attorney General failed
to demonstrate the Prop 65 safe harbor warning came within
the Zauderer exception for the following reasons: (1) while
it was technically correct that glyphosate was “known to the
state to cause cancer” as defined under the statute and
regulations, that phrase would be misleading to an ordinary
consumer; (2) any warning that was more equivocal likely
would be prohibited by the regulations; and (3) the warning
was not “factually accurate and uncontroversial” because
IARC stood alone in its conclusion that glyphosate was
probably carcinogenic to humans.
C. Motion for Reconsideration
On March 26, 2018, the Attorney General moved to alter
or amend the preliminary injunction order under Federal
Rule of Civil Procedure 59(e). Among other things, the
Attorney General “ask[ed] the Court to reconsider, and alter,
its erroneous conclusion that there is no possible warning
that can comply with Proposition 65 and not violate the
Plaintiffs’ First Amendment rights.” To support this
assertion, the Attorney General proffered two new variations
20 NAWG V. BONTA

of warnings as “new evidence” that he argued would both
comply with Prop 65 and not violate Plaintiffs’ First
Amendment rights. The first, “Warning Option 1,” stated:

WARNING: This product can expose you to
glyphosate, a chemical listed as causing
cancer pursuant to the requirements of
California law. For more information go to
www.P65warnings.ca.gov.

The Attorney General contended that because this language
maintained the core Prop 65 information but removed the
“known to cause cancer” language the district court found
troublesome, it was therefore “purely factual and
uncontroversial information” that qualified for the lower
level of review under Zauderer, notwithstanding the
scientific disagreement between IARC and numerous other
entities.
The Attorney General offered a second alternative,
“Warning Option 2,” which reads:

WARNING: This product can expose you to
glyphosate, a chemical listed as causing
cancer pursuant to the requirements of
California law. The listing is based on a
determination by the United Nations
International Agency for Research on Cancer
that glyphosate presents a cancer hazard. The
U.S. Environmental Protection Agency has
tentatively concluded in a draft document
that glyphosate does not present a cancer
 NAWG V. BONTA 21

hazard. For more information go to
www.P65warnings.ca.gov.

Again, the Attorney General argued this version of the
warning was also factual and truthful, and that the additional
language clarifying the respective stances of IARC and EPA
was enough to comport with Zauderer.
After another hearing in June 2018, the district court
denied the Attorney General’s motion for reconsideration.
The district court held that the Attorney General did not meet
the requirements of Rule 59, and that most of the new
evidence presented (the alternative warnings) was not
actually “new evidence.” The district court also rejected the
constitutionality of the alternative warnings on the merits.
Regarding Warning Option 1, the district court found it
was “not significantly different from the existing safe harbor
warning already rejected,” and its attempt to rephrase
“known to the state to cause cancer” as “causing cancer
‘pursuant to the requirements of California law’” was
“essentially the same message.” To the extent the Attorney
General contended the warning could be cured by directing
consumers to the Prop 65 website, the district court opined,
“[a] warning that is deficient under the First Amendment
may not be cured by reference to an outside source.”
With respect to Warning Option 2, the district court
observed that during the hearing on the preliminary
injunction motion, the district court had proposed similar
language that would “provid[e] more context regarding the
debate on glyphosate’s carcinogenicity,” but the Attorney
General had rejected each of those proposals because they
would “dilute” the warning. While the Attorney General
argued that he could not have possibly offered such a
22 NAWG V. BONTA

warning until the court’s ruling, the district court disagreed,
stating “the Attorney General essentially took the position
that the warning he now advocates was insufficient.”
Finally, the district court found that Warning Option 2
was still deficient because it improperly “conveys the
message that there is equal weight of authority for and
against the proposition that glyphosate causes cancer, or that
there is more evidence that it does, given the language
stating that the EPA’s findings were only tentative, when the
heavy weight of evidence in the record is that glyphosate is
not known to cause cancer.” Accordingly, the district court
denied the motion for reconsideration in full.
D. Motions for Summary Judgment
In September 2019, the parties filed cross-motions for
summary judgment. Plaintiffs sought a permanent
injunction barring enforcement of the Prop 65 warning
requirement as to glyphosate for the reasons argued in their
motion for a preliminary injunction, and the Attorney
General sought a determination that Plaintiffs’ First
Amendment claim failed as a matter of law. In June 2020,
the district court granted Plaintiffs’ motion and denied the
Attorney General’s.
As it did in its order at the preliminary injunction stage,
the district court discussed two possible levels of scrutiny
applicable: intermediate scrutiny under Central Hudson Gas
& Electric Corp. v. Public Service Commission, 447 U.S.
577 (1980), or “a lower standard” under Zauderer.
The district court again found that Zauderer review was
inapplicable because the Attorney General did not carry his
burden to show that the Prop 65 warning label was “purely
factual and uncontroversial.” First, the district court
 NAWG V. BONTA 23

reiterated that the proposed safe harbor warning is “false and
misleading” because IARC was the sole agency to conclude
that glyphosate causes cancer. And even though this
statement was true as the term was defined in the statute and
regulations, “the required warning would nonetheless be
misleading to the ordinary consumer.”
After rejecting additional arguments raised by the
Attorney General relating to the “purely factual and
uncontroversial” prong of Zauderer, the district court
addressed and rejected each of the Attorney General’s three
proposed alternative warnings. 7 Warning Option 1 was
misleading because it “conveys essentially the same
message” as the initial safe harbor warning, and that “simply
pointing consumers to a website discussing the debate” did
not remedy that core problem. Warning Option 2, which
provided additional context, was also deficient because it
improperly conveyed a message that the scientific split was
supported by “equal weight of authority . . . when the heavy
weight of evidence in the record is that glyphosate is not
known to cause cancer.”
The district court also rejected a new proposed
alternative, Warning Option 3, which provided:

WARNING: This product can expose you to
glyphosate. The State of California has
determined that glyphosate is known to cause
cancer under Proposition 65 because the

7
The first two proposed alternative warnings from the Attorney General
were proposed in his motion to reconsider, but “out of an abundance of
caution,” the district court addressed them in the order on the cross-
motions for summary judgment. The third alternative warning,
“Warning Option 3,” was offered for the first time at summary judgment.
24 NAWG V. BONTA

International Agency for Research on Cancer
has classified it as a carcinogen, concluding
that there is sufficient evidence of
carcinogenicity from studies in experimental
animals and limited evidence in humans, and
that it is probably carcinogenic to humans.
The EPA has concluded that glyphosate is not
likely to be carcinogenic to humans. For
more information about glyphosate and
Proposition 65, see
www.P65warnings.ca.gov.

At bottom, the district court found Warning Option 3 was
still deficient because it conveyed the same message that
glyphosate was a known carcinogen when the weight of the
evidence suggested that it is not. Because none of the
alternatives proposed by the Attorney General could solve
this problem, the district court concluded that none of the
warnings came within the scope of Zauderer. 8
The district court instead applied intermediate scrutiny
under Central Hudson and found that the proposed safe
harbor warnings failed both requirements. Specifically, the
district court found that although California had a substantial
interest in informing consumers of cancer risks, the
misleading nature of the warning about glyphosate’s
carcinogenicity did not directly advance that interest.
Likewise, the district court found that the State had other
measures to disseminate its message about glyphosate that
did not burden the free speech of businesses, such as

8
Because the district court found the Prop 65 warning was not purely
factual and uncontroversial, the district court did not reach the interest
balancing portion or the undue burden analysis under Zauderer.
 NAWG V. BONTA 25

“advertising campaigns or posting information on the
Internet.”
Because the district court found that the Prop 65 warning
violated the First Amendment as applied to glyphosate, the
district court considered whether entry of a permanent
injunction was appropriate. Concluding that (1) Plaintiffs
prevailed on the merits of their First Amendment claim, (2)
were likely to suffer irreparable harm absent an injunction,
and (3) the balance of the equities and public interest favored
an injunction, the district court permanently enjoined the
Attorney General from enforcing Prop 65’s warning
requirement as applied to glyphosate.
E. Appeal
The Attorney General timely appealed the district court’s
grant of summary judgment and entry of a permanent
injunction. On appeal, the Attorney General asserts that the
third alternative warning, which he offered at the summary
judgment stage, comes within the scope of Zauderer and
complies with that standard. To support this assertion, the
Attorney General relies primarily on CTIA - The Wireless
Ass’n v. City of Berkeley, 928 F.3d 832 (9th Cir. 2019), cert.
denied, 140 S. Ct. 658 (2019) (CTIA II). In the alternative,
the Attorney General asserts that the warning passes
intermediate scrutiny under Central Hudson.
STANDARD OF REVIEW
We review the district court’s grant of summary
judgment de novo, viewing the evidence in the light most
favorable to the non-moving party and drawing all
reasonable inferences in its favor. Bell v. Wilmott Storage
Servs., LLC, 12 F.4th 1065, 1068 (9th Cir. 2021).
26 NAWG V. BONTA

DISCUSSION
One of the First Amendment’s core purposes is “to
preserve an uninhibited marketplace of ideas in which truth
will ultimately prevail.” McCullen v. Coakley, 573 U.S. 464,
476 (2014) (quoting FCC v. League of Women Voters of Cal.,
468 U.S. 364, 377 (1984)). “The commercial marketplace,
like other spheres of our social and cultural life, provides a
forum where ideas and information flourish.” Sorrell v. IMS
Health Inc., 564 U.S. 552, 578–79 (2011) (quoting Edenfield
v. Fane, 507 U.S. 761, 767 (1993)). While the paradigmatic
First Amendment right lies in protections against speech
restrictions, the Court has long held the “right to speak and
the right to refrain from speaking are complimentary
components” of free speech principles. Wooley v. Maynard,
430 U.S. 705, 714 (1977). Indeed, in the context of protected
speech, the First Amendment’s guarantee of freedom of
speech makes no distinction of “constitutional significance”
“between compelled speech and compelled silence.” Riley
v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796–
97 (1988).
Although commercial speech is afforded less protection
than private, noncommercial speech, it is still entitled to the
protections of the First Amendment. See generally Bolger v.
Young Drug Prods. Corp., 463 U.S. 60, 64–65 (1983)
(discussing recognition and evolution of commercial speech
doctrine). This holds true for both corporations and
individuals alike. See Pac. Gas & Elec. Co. v. Pub. Utils.
Comm’n of Cal., 475 U.S. 1, 16 (1986).
Despite its lengthy procedural history, this case presents
a single legal question that is outcome determinative: What
level of scrutiny applies to the Prop 65 glyphosate warning?
We answer this question by examining the Supreme Court’s
 NAWG V. BONTA 27

compelled commercial speech doctrine found in Zauderer
and Central Hudson and our precedent interpreting those
cases.
A. Threshold Issue: Two Levels of Scrutiny
The Supreme Court recognizes two levels of scrutiny
governing compelled commercial speech. First, under
Central Hudson, the Court applies intermediate scrutiny,
which requires the government to “directly advance” a
“substantial” governmental interest, and the means chosen
must not be “more extensive than necessary.” 447 U.S. at
564–66. Second, there is the lower standard applied in
Zauderer, which requires the compelled speech be
“reasonably related” to a substantial government interest and
not be “unjustified or unduly burdensome.” 471 U.S. at 651.
In determining which standard applies, we have
previously categorized Zauderer as an “exception for
compelled speech.” CTIA II, 928 F.3d at 843. The Supreme
Court has held that Zauderer review is only available “in
certain contexts.” See Nat’l Inst. of Fam. & Life Advocs. v.
Becerra, 138 S. Ct. 2361, 2372–73 (2018) (NIFLA). To
qualify for review under Zauderer, the compelled
commercial speech at issue must disclose “purely factual and
uncontroversial information.” 471 U.S. at 651.
Accordingly, to determine if the Prop 65 warning
qualifies for the Zauderer exception, we first must determine
whether it concerns “purely factual and uncontroversial
information” before considering whether it is reasonably
related to a substantial governmental interest and is not
“unjustified or unduly burdensome.” See Am. Beverage
Ass’n v. City & Cnty. of San Francisco, 916 F.3d 749, 755–
56 (9th Cir. 2019) (ABA II) (en banc) (citing NIFLA).
28 NAWG V. BONTA

B. What Types of Compelled Speech Qualify for
Zauderer Review?
While Zauderer was decided to combat deceptive and
misleading commercial speech in the context of
advertisements, we have expanded Zauderer’s reach beyond
prevention of deceptive speech to other substantial
governmental interests, most notably, public health. 9 See,
e.g., CTIA II, 928 F.3d at 843–44 (collecting cases
discussing permissible governmental interests potentially
qualifying for review under Zauderer).
We first consider whether the compelled disclosure
involves “purely factual and uncontroversial information.”
Because the Supreme Court has not expressly defined
“purely factual and uncontroversial information,” we look to
cases applying that standard to discern its meaning.
1. What is “Purely Factual”?
Information that is purely factual is necessarily
“factually accurate,” but that alone is not enough to qualify
for the Zauderer exception. See ABA II, 916 F.3d at 757.
Our decision in CTIA II is illustrative. There, the City of
Berkeley had an ordinance requiring cell phone retailers to
inform prospective cell phone purchasers of the risks of
radio-frequency (RF) radiation from carrying cell phones on
their person. CTIA II, 928 F.3d at 836–38. Notably, the

9
The position that Zauderer should apply in the absence of a prevention-
of-deception rationale is itself controversial in this Circuit. Over several
of our colleagues’ opposition, we have held that Zauderer applies
beyond that context. See, e.g., CTIA II, 928 F.3d at 854 & n.2 (Friedland,
J., concurring in part and dissenting in part); CTIA—The Wireless Ass’n
v. City of Berkeley, 873 F.3d 774, 775 (9th Cir. 2017) (Wardlaw, J.,
dissenting from denial of reh’g en banc); ABA II, 916 F.3d at 768
(Nguyen, J., concurring in the judgment).
 NAWG V. BONTA 29

Federal Communications Commission (FCC) had, in
conjunction with other agencies such as EPA and the Food
and Drug Administration, established certain guidelines for
Specific Absorption Rates (SARs) at issue for RF radiation.
Id. at 838–40. As part of the FCC’s regulatory scheme, cell
phone manufacturers were required to include SAR warning
limits in their user manuals as a prerequisite for FCC device
approval. Id. at 840–41. The Berkeley ordinance
“require[d] cell phone retailers to disclose, in summary form,
the same information to consumers that the FCC already
requires cell phone manufacturers to disclose.” Id. at 841.
CTIA, a trade association, challenged the ordinance on First
Amendment and preemption grounds. Id. at 838.
We found that Zauderer review was appropriate because
the RF radiation warning was “purely factual” as it only
required the disclosure of accurate, factual information. Id.
To make this determination, we employed a sentence-by-
sentence analysis, and found that each sentence was
factually accurate and none contained an “inflammatory
warning” that CTIA complained of. Id. at 846–48. We did,
however, note that “of course, [] a statement may be literally
true but nonetheless misleading and, in that sense, untrue.”
Id. at 847. Because Berkeley’s ordinance qualified for
Zauderer review and the balance of the equities weighed in
its favor, we affirmed the district court’s denial of CTIA’s
motion for a preliminary injunction. Id. at 852–53.
Judge Friedland dissented in part. Specifically, she
wrote that the majority engaged in a myopic review of the
ordinance and faulted the majority for “pars[ing] the[]
sentences individually and conclud[ing] that each is ‘literally
true’” and “miss[ing] the forest for the trees.” Id. at 853
(Friedland, J., dissenting in part). Instead, Judge Friedland
wrote that the overall message conveyed by the ordinance
30 NAWG V. BONTA

was that carrying a cell phone was not safe (i.e., untrue and
misleading), and ordering the cell phone retailers to convey
such a message they disagreed with was unconstitutional.
Id. Judge Friedland also warned of the “downsides to false,
misleading, or unsubstantiated product warnings.” Id. at
854–55. In particular, Judge Friedland noted that an
oversaturation in warnings for minor risks tends to diminish
the believability and credibility of warnings in general, and
that such warnings are tantamount to “crying wolf.” Id.
2. What is “Uncontroversial”?
NIFLA provides us some guidance on the
“uncontroversial” element of Zauderer. There, a group of
medical providers and crisis pregnancy centers challenged a
California statute requiring “licensed” abortion clinics to
notify women that California provides “immediate free or
low-cost access” to family planning services (including
abortion) and provide a phone number. 10 NIFLA, 138 S. Ct.
at 2368–70. Those providers were required to post the notice
in the waiting room, distribute it to patients, and give it
digitally at check in. Id. at 2369.
Examining the notice requirement, the Supreme Court
made several observations. First, that the requirement was
“a content-based regulation of speech” because it required
the speaker to convey a particular message that altered the
content of their desired speech by requiring them to inform
women on how to obtain state-subsidized abortions. Id. at

10
In NIFLA, the Court also examined the constitutionality of notice
requirements for “unlicensed” facilities, and found they did not qualify
for the Zauderer exception because California failed to demonstrate the
disclosures for those types of facilities were not “unjustified or unduly
burdensome.” NIFLA, 138 S. Ct. at 2377 (quoting Zauderer, 471 U.S.
at 651).
 NAWG V. BONTA 31

2371. Second, the Ninth Circuit’s carve out from strict
scrutiny for “professional speech” was not recognized by the
Supreme Court’s traditions. Id. at 2371–72. Rather, lower
scrutiny for professional speech was only recognized in two
instances, “neither of which turned on the fact that
professionals were speaking.” Id. at 2372. One of these
exceptions is Zauderer. Id. The Supreme Court found that
Zauderer was inapplicable because: (1) the notice (for state-
subsidized abortions) did not relate to the actual services
provided by licensed clinics, and (2) the disclosure was
about “anything but an ‘uncontroversial’ topic.” Id.
NIFLA tells us that the topic of the disclosure and its
effect on the speaker is probative of determining whether
something is subjectively controversial. However, we have
interpreted NIFLA as not “saying broadly that any purely
factual statement that can be tied in some way to a
controversial issue is, for that reason alone, controversial.”
CTIA II, 928 F.3d at 845. Instead, what made the notice in
NIFLA controversial was the fact that it “forc[ed] the clinic
to convey a message fundamentally at odds with its
mission.” Id.
While the effect on the speaker is one part of the
equation, an objective evaluation of “controversy” is also an
important consideration. Recently, in California Chamber
of Commerce v. Council for Education and Research on
Toxics, 29 F.4th 468 (9th Cir. 2022), reh’g denied, 51 F.4th
1182 (Oct. 26, 2022) (CERT), we affirmed a preliminary
injunction against the enforcement of Prop 65’s warning
requirement as applied to a chemical called acrylamide. Id.
at 472–74. There, we held that a “robust disagreement by
reputable scientific sources” supported the conclusion that
the Prop 65 warning was “controversial.” Id. at 478.
Although CERT did not offer any concrete definition of
32 NAWG V. BONTA

“controversial,” it noted “[h]owever controversial is defined,
the acrylamide Prop. 65 warning easily meets the definition
because of the scientific debate.” Id. at 478 & n.10.
3. Is the Prop 65 Glyphosate Warning “Purely
Factual and Uncontroversial”?
The district court found the standard safe harbor Prop 65
glyphosate warning not to be purely factual because it was
false and misleading. In particular, the district court
explained that while California may literally “know” that
glyphosate causes cancer as defined by the statute and
regulations, an ordinary consumer would not understand the
nuance between “known” as defined in the statute and
“known” as commonly interpreted without knowledge of the
scientific debate on that subject.
This conclusion finds support in both CTIA II and CERT.
While the CTIA II majority found that each sentence of the
warning about RF radiation exposure was accurate and thus
the disclosure read in whole was not misleading, that is not
true in this case because it is unclear what the term “known”
means to the consumer. As we held in CERT, “[u]nder Prop.
65, a ‘known’ carcinogen carries a complex legal meaning
that consumers would not glean from the warning without
context” and “[t]hus, use of the word ‘known’ is
misleading.” 29 F.4th at 479.
Moreover, the safe harbor Prop 65 glyphosate warning is
not “uncontroversial.” From the standpoint of an average
consumer, saying that something is carcinogenic or has
serious deleterious health effects—without a strong
scientific consensus that it does—remains controversial. It
is also controversial from the subjective standpoint of the
speakers, as Plaintiffs assert that they are being forced “to
convey a message fundamentally at odds” with their
 NAWG V. BONTA 33

businesses. See CTIA II, 928 F.3d at 845. Also, the warning
requirement applied to glyphosate is undeniably
controversial from an objective scientific standpoint.
Although “uncontroversial” does not mean “unanimous,”
here IARC stands essentially alone in its determination that
glyphosate is probably carcinogenic to humans, while EPA,
OEHHA, and regulators from around the world conclude
that it is not.
CERT is instructive on this point. There, we affirmed a
finding that the acrylamide warning was controversial in the
face of a much more even debate. See CERT, 29 F.4th at
478. While EPA, IARC, and the U.S. National Toxicology
Program each classified acrylamide as some level of a
carcinogen, the American Cancer Society, the National
Cancer Institute, and an “epidemiologist who reviewed 56
studies” concluded that it was not carcinogenic. Id. We
found this to be a “robust disagreement” and agreed that the
safe harbor warning was “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.” Id. The same conclusion must
apply here, where IARC and EPA are on opposite sides of
the scientific debate, and scientific consensus is much less
evenly distributed. 11

11
A few of the amici curiae, along with our dissenting colleague, warn
of the dangers of interpreting “controversial” too broadly. In particular,
they contend that large companies would have a perverse incentive to
“manufacture” a scientific controversy where none exists. While these
concerns may have some validity, we are not convinced that here any
such controversy was artificially manufactured.
34 NAWG V. BONTA

C. Does Warning Option 3 Qualify for Zauderer
Review?
Before the district court, the Attorney General offered
three proposed warnings as alternatives to the standard safe
harbor warning at various stages of the litigation. On appeal,
he focuses on the third, which, for the sake of convenience,
we repeat:

WARNING: This product can expose you to
glyphosate. The State of California has
determined that glyphosate is known to cause
cancer under Proposition 65 because the
International Agency for Research on Cancer
has classified it as a carcinogen, concluding
that there is sufficient evidence of
carcinogenicity from studies in experimental
animals and limited evidence in humans, and
that it is probably carcinogenic to humans.
The EPA has concluded that glyphosate is not
likely to be carcinogenic to humans. For
more information about glyphosate and
Proposition 65, see
www.P65warnings.ca.gov.

The district court rejected this warning, holding that even
though it contained additional context, “it once again states
that glyphosate is known to cause cancer and conveys the
message that there is equal weight for and against the
authority that glyphosate causes cancer, when the weight of
evidence is that glyphosate does not cause cancer.”
Nonetheless, the Attorney General contends that this
warning is permissible under CTIA II because it is
“nuanced,” “contains indisputably accurate factual
 NAWG V. BONTA 35

statements, and there is nothing misleading about the
warning as a whole.” He contends that employing the
sentence-by-sentence analysis used in CTIA II, each
assertion in Warning Option 3 is purely factual. Even
accepting that the Attorney General is correct that each
sentence is entirely and literally true, that is not enough. As
CTIA II itself held, the totality of the warning may not be
“nonetheless misleading.” 928 F.3d at 847. Fairly viewed,
Warning Option 3 fails for the same reasons the standard safe
harbor warning fails. It conveys the same core message that
California knows glyphosate causes cancer (which is
contrary to the opinion of EPA and others) even though the
technical meaning of the word “known” in the warning is
different from the meaning an average consumer would give
the word “known.” While Warning Option 3 does reference
the scientific debate, and provides literally true statements
about IARC and EPA, it still improperly “elevates one side
of a legitimately unresolved scientific debate.” CERT, 29
F.4th at 478.
For many of the same reasons, Warning Option 3 is also
controversial. It still requires Plaintiffs to convey a message
that they fundamentally disagree with. See CTIA II, 928 F.3d
at 845. While the Attorney General argues that this case
bears “no meaningful distinction” from CTIA II, we
disagree. The most obvious distinction is the warning
approved by the CTIA II court did not include a statement
that the City of Berkeley “knew” RF frequencies cause
cancer or health related issues, or otherwise placed the
imprimatur of the city behind the assertions. Nor did it offer
any scientific statements that a federal regulatory agency
viewed as false. To the contrary, the FCC already required
cell phone manufacturers to provide a similar disclosure. In
other words, while a compelled restatement of an undisputed
36 NAWG V. BONTA

federal requirement is not controversial, a compelled
statement of a hotly disputed scientific finding is. 12
We reiterated this point in a decision holding that a more
factually analogous ordinance failed Zauderer review. In
CTIA—The Wireless Ass’n v. City & County of San
Francisco, 827 F. Supp. 2d 1054 (N.D. Cal. 2011), the City
of San Francisco had an ordinance requiring cell phone
service providers to distribute a factsheet that included the
statement: “ALTHOUGH STUDIES CONTINUE TO
ASSESS POTENTIAL HEALTH EFFECTS OF MOBILE
PHONE USE, THE WORLD HEALTH ORGANIZATION
HAS CLASSIFIED RF ENERGY AS A POSSIBLE
CARCINOGEN.” Id. at 1058. The district court enjoined
the distribution of the ordinance’s fact-sheet, concluding that
although mostly factually true, there were several misleading
omissions which left the “overall impression . . . that cell
phones are dangerous and that they have somehow escaped
the regulatory process.” Id. at 1062–63. We affirmed the
district court in a memorandum disposition, finding that the
original ordinance as enjoined was “misleading and
controversial.” CTIA––Wireless Ass’n v. City & Cnty. of San
Francisco, 494 F. App’x 752, 754 (9th Cir. 2012). Although
not binding, we agree with the reasoning expressed in that
decision.

12
Contrary to the dissent’s critique, we do not hold Warning Option 3
controversial simply because its message runs counter to Plaintiffs’
business interests. Rather, mandating the display of Warning Option 3
is controversial because Plaintiffs do not agree with its message and
Plaintiffs’ disagreement is currently supported by a majority of the
authorities in this as-yet-unresolved scientific debate.
 NAWG V. BONTA 37

In sum, Warning Option 3 does not qualify for the lower
level of review under Zauderer because it is neither “purely
factual” nor “uncontroversial.”
D. Intervening Developments
After the conclusion of the principal briefing in this case,
we granted the Attorney General’s unopposed motion to hold
the appeal in abeyance until completion of OEHHA’s final
regulation that was to promulgate the appropriate “safe
harbor” Prop 65 warning for glyphosate. In September
2022, OEHHA completed its final rulemaking, authorizing a
new, glyphosate-specific safe harbor Prop 65 warning
(OEHHA Warning). The OEHHA Warning must contain
“CALIFORNIA PROPOSITION 65 WARNING” 13 in
capital letters and bold print, and contain the words:

Using this product can expose you to
glyphosate. The International Agency for
Research on Cancer classified glyphosate as
probably carcinogenic to humans. US EPA
has determined that glyphosate is not likely
to be carcinogenic to humans; other
authorities have made similar determinations.
A wide variety of factors affect your potential
risk, including the level and duration of
exposure to the chemical. For more
information, including ways to reduce your

13
In certain instances, “the word ‘ATTENTION’ or ‘NOTICE’ in capital
letters and bold type may be substituted for the words ‘CALIFORNIA
PROPOSITION 65 WARNING’.” Cal. Code Regs. tit. 27,
§ 25607.49(b).
38 NAWG V. BONTA

exposure, go to
www.P65Warnings.ca.gov/glyphosate.

Cal. Code Regs. tit. 27, §§ 25607.48, 25607.49(a). At our
direction, the parties each filed supplemental briefs
addressing the impact of the OEHHA Warning. 14
We hold that the text and substance of the OEHHA
Warning does not fundamentally alter our analysis or our
conclusion that a compelled warning that glyphosate is a
likely carcinogen does not qualify for review under
Zauderer.
1. The OEHHA Warning Is Not Materially Different
OEHHA adopted the new warning to “tak[e] into account
the concerns expressed [by] the District Court.” During this
rulemaking, OEHHA consulted with EPA to revise the
warning language, acknowledging EPA’s stance that the
previous proposed safe harbor warning was false and
misleading in view of its determination that glyphosate was
not likely carcinogenic to humans.
The Attorney General argues that the OEHHA Warning
qualifies for review under Zauderer for two main reasons.

14
In their briefing, the parties also address our recent decision in
National Resources Defense Council v. U.S. Environmental Protection
Agency, 38 F.4th 34 (9th Cir. 2022) (NRDC). There, under a substantial
evidence review, we vacated a portion of EPA’s 2020 interim
registration decision that reaffirmed EPA’s view that glyphosate is “not
likely to be carcinogenic to humans.” Id. at 45–52, 62. While the
Attorney General contends this decision constitutes a changed
circumstance warranting reversal or vacatur, that argument has little
bearing on the First Amendment analysis. Moreover, EPA has already
reaffirmed that it believes the scientific evidence supports its choice of
hazard descriptor, and that it “intends to revisit and better explain its
evaluation.”
 NAWG V. BONTA 39

First, it omits the language that glyphosate is “known to the
state of California to cause cancer.” Second, it addresses the
district court’s concerns that the previous warnings
improperly conveyed an equal consensus among scientific
regulators. While these are true observations, they do not
alter the overall message.
Like Warning Option 3, each statement may be factually
true, but also like Warning Option 3, the OEHHA Warning
still conveys the overall message that glyphosate is unsafe
which is, at best, disputed. See CTIA II, 928 F.3d at 853
(Friedland, J., dissenting in part). Even though IARC and
EPA are put on equal footing in this version, the OEHHA
Warning still “elevates one side of a legitimately unresolved
scientific debate.” CERT, 29 F.4th at 478. The statement
after the semicolon, that “other authorities have made similar
determinations,” is ambiguous and omits the breadth of the
scientific consensus that glyphosate is not a likely
carcinogen. But the implication remains that science is
essentially in equipoise.
And the OEHHA Warning adds an additional concern
from the other versions offered by the Attorney General. As
discussed above, IARC has only opined that glyphosate
poses a potential cancer “hazard,” meaning that at some
theoretical level of exposure, it could cause cancer. The
OEHHA Warning does not use the word “hazard,” although
it correctly frames the discussion as one based on exposure.
But in its fourth sentence, the OEHHA Warning states: “A
wide variety of factors affect your potential risk, including
the level and duration of exposure to the chemical.” Cal.
Code Regs. tit. 27, § 25607.49(a)(3) (emphasis added). No
agency or regulatory body has determined that glyphosate
poses a carcinogenic “risk.” By using the word “risk,” the
OEHHA Warning is factually misleading because a
40 NAWG V. BONTA

reasonable person reading it would understand this to mean
that glyphosate poses a risk not a hazard.
Even if we found the OEHHA Warning to be “purely
factual,” the disclosure remains controversial. In CERT, the
panel observed “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.” 29 F.4th
at 480 n.14. We likewise leave that question for another day
because the OEHHA Warning, like the other alternative
versions, remains controversial. To summarize, the OEHHA
Warning is controversial because (1) of the unresolved
scientific debate over glyphosate’s carcinogenicity, and (2)
it still requires Plaintiffs to alter their desired message for the
State’s preferred message that glyphosate presents a health
risk.
2. Remand Is Not Necessary
Although the Attorney General asks us, at a minimum, to
remand to the district court for consideration of the adequacy
of the OEHHA Warning, we decline to do so. A remand is
not necessary “where a complete understanding of the issues
may be had by the appellate court without the necessity of
separate findings.” Richmond Elks Hall Ass’n v. Richmond
Redev. Agency, 609 F.2d 383, 385–86 (9th Cir. 1979) (citing
Swanson v. Levy, 509 F.2d 859, 861 (9th Cir. 1975)); see also
In re Pintlar Corp., 133 F.3d 1141, 1145 (9th Cir. 1998)
(“Remand is not necessary where the issue has been fully
briefed on appeal, the record is clear and remand would
impose needless additional expense and delay.” (cleaned
up)). Based on the entire record before us, we see no reason
to remand and thus cause further delay.
 NAWG V. BONTA 41

As the Court held in Zauderer, “[w]hen the possibility of
deception is as self-evident as it is in this case, we need not
require the State to ‘conduct a survey of the ... public before
it [may] determine that the [advertisement] had a tendency
to mislead.’” 471 U.S. at 652–53 (quoting FTC v. Colgate-
Palmolive Co., 380 U.S. 374, 391–92 (1965) (ellipsis in
original)). We see no reason to remand because the issues
plaguing the OEHHA Warning could not be cured by any
sort of factual development. While the OEHHA Warning
changes the wording about the scientific debate, it does not
change the fact that a deep scientific debate still exists.
Nor does it change the fundamental analysis of the
applicability of Zauderer’s exception as a matter of law. As
cases such as CERT have made clear, the presence of a
genuine, scientific controversy is sufficient to place a Prop
65 warning outside the realm of the lower level of review
under Zauderer. This conclusion is grounded in basic First
Amendment principles that protect against compelled
speech. Stated another way, “history and tradition provide
no support for . . . free-wheeling government power to
mandate compelled commercial disclosures.” Am. Meat
Inst. v. U.S. Dep’t of Agric., 760 F.3d 18, 32 (D.C. Cir. 2014)
(Kavanaugh, J., concurring) (noting among other things, that
“consumer desire” for a person to know if a doctor had ever
performed an abortion could not support a compelled
disclosure). To the contrary, the Supreme Court has made
clear that a state may not regulate commercial speech on the
back of controverted evidence. See Brown v. Ent. Merchs.
Ass’n, 564 U.S. 786, 792–93 (2011) (striking down
California’s Assembly Bill 1179, regulating the sale and
rental of “violent video games” to minors, and requiring their
packaging to be labeled “18.”); see also id. at 858
(appendices, noting compilation of “controverted” evidence
42 NAWG V. BONTA

supporting conclusion that violent video games cause
children psychological harm). Ultimately, the OEHHA
Warning requires Plaintiffs to convey a controversial,
fiercely contested message that they fundamentally disagree
with. Such government action may not be reviewed under
the lessened degree of scrutiny found in Zauderer.
E. Does any Iteration of the Prop 65 Glyphosate
Warning Survive Intermediate Scrutiny?
Because no version of the Prop 65 glyphosate warning
comes within the scope of the exception found in Zauderer,
we consider whether it passes intermediate scrutiny under
Central Hudson. Under that standard, the government may
compel a disclosure of commercial speech only if (1) it
directly advances a substantial governmental interest, and
(2) the restriction is not more extensive than necessary to
serve that interest. Central Hudson, 447 U.S. at 566.
California unquestionably has a substantial interest in
preserving the health of its citizens. See Semler v. Or. State
Bd. of Dental Exam’rs, 294 U.S. 608, 612 (1935) (public
health is a “vital interest”). However, compelling sellers to
warn consumers of a potential “risk” never confirmed by any
regulatory body—or of a hazard not “known” to more than
a small subset of the scientific community—does not
directly advance that interest. Further, as the Supreme Court
noted in holding that the licensed notice requirement failed
intermediate scrutiny in NIFLA, we observe that California
could employ various other means to promote its (minority)
view that glyphosate puts humans at risk of cancer “without
burdening [Plaintiffs] with unwanted speech.” 138 S. Ct. at
2376 (internal quotation marks omitted). For example, the
State could reasonably post information about glyphosate on
its own website or conduct an advertising campaign. Neither
 NAWG V. BONTA 43

of those mechanisms “co-opt [Plaintiffs] to deliver its
message for it.” Id.
CONCLUSION
The State and the Attorney General undoubtedly have
good and legitimate interests and strong policy arguments in
support of seeking to proactively warn California citizens
about a chemical that they deem to be carcinogenic.
Moreover, as several amici argue, there can be inherent risks
associated with a “wait-and-see” approach when it comes to
forms of evolving science. But the fact that science is
evolving is all the more reason to provide robust First
Amendment protections. This holds even more true when
the State is free to advance its own views without using
others as a “billboard.” See Wooley, 430 U.S. at 715. The
deprivation of “First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373
(1976).
Although commandeering speech may seem expedient,
it is seldom constitutionally permissible. Considering the
current vigorous debate surrounding the scientific validity of
glyphosate’s carcinogenicity, forcing Plaintiffs to convey
that message cannot be said to be an uncontroversial
proposition. Because none of the proposed glyphosate
Prop 65 warnings are narrowly drawn to advancing
California’s interest in protecting consumers from
carcinogens, and California has less burdensome ways to
convey its message than to compel Plaintiffs to convey it for
them, the Prop 65 warning as applied to glyphosate is
unconstitutional. The judgment and injunction order of the
district court is AFFIRMED.
44 NAWG V. BONTA

Schroeder, Circuit Judge, dissenting:

This court should, at the very least, remand the new
OEHHA warning to the district court to consider its
sufficiency in the first instance. The warning consists of five
factually accurate sentences informing users that the product
can expose them to a substance the IARC has determined
probably causes cancer. It further advises that the EPA and
others have concluded the substance probably does not cause
cancer and then directs the reader to an informational
website. The warning fulfills the requirements of Prop 65,
the validity of which is not questioned. As codified, Prop 65
requires listing substances that the IARC considers
carcinogens. See Cal. Health & Safety Code §§ 25249.8(a),
25249.6; Cal. Labor Code § 6382(b)(1).
Yet the majority decides in the first instance that the new
warning is not factual and that it is controversial. The
majority apparently does so because of the very scientific
disagreement the new warning discloses. In my view, the
district court should take the first look for three fundamental
reasons, none of which the majority addresses.
First, we have no guidance from the Supreme Court on
compelled commercial speech in the sphere of product
liability and consumer protection. The majority looks to
Nat’l Inst. of Fam. and Life Advocs. v. Becerra, 138 S. Ct.
2361, 2372 (2018) (“NIFLA”) for guidance as to what may
be “uncontroversial,” yet that case concerns compelled
speech about the hyper-controversial subject of access to
abortion. It has nothing to do with consumer protection. The
majority says that compelling a message “at odds with its
mission” is a harbinger of controversy, yet every warning of
a product’s risk to consumers bears a message at odds with
the manufacturer’s mission to sell more products.
 NAWG V. BONTA 45

Second, the majority refuses to look at the actual content
of the new warning, even though our circuit law looks to the
content of the message rather than the nature of the
controversy. See CTIA - The Wireless Ass'n v. City of
Berkeley, Cal., 928 F.3d 832, 845-46 (9th Cir. 2019) (“CTIA
II”). We there found review appropriate under Zauderer v.
Off. of Disciplinary Couns. of Sup. Ct. of Ohio, 471 U.S. 626,
651 (1985) because the warning consisted of factually
accurate information. We employed a sentence-by-sentence
analysis. The majority here adopts the position of the dissent
in CTIA II, looking instead to what the majority views as the
overall message.
Third, the majority adopts the district court’s conclusion
that the existence of scientific debate over the safety of
glyphosate precludes any warning requirement. It looks to
the EPA’s decision that glyphosate was not likely to be
carcinogenic to humans. Yet this court recently vacated the
EPA’s decision on the ground it was not supported by
substantial evidence. See Nat. Res. Def. Council v. U.S.
Env't Prot. Agency, 38 F.4th 34, 51 (9th Cir. 2022). The
majority merely accepts the EPA’s promise it will do better
some time in the future. There remains no adequate basis for
reliance on the EPA, and a strong reason for the district court
to reconsider the scientific record.
Moreover, the new warning takes out the language the
district court had found misleading in the earlier iterations.
The district court had concluded that the requirement that
businesses disclose that glyphosate is “known to the state of
California to cause cancer” was misleading because the
warning, in the court’s view, conveyed without qualification
that “glyphosate is known to cause and actually causes
cancer.” The new warning does not include any such
language.
46 NAWG V. BONTA

The majority appears to read Zauderer too narrowly by
suggesting that if there is any disagreement involving the
subject matter, Zauderer cannot apply, even if what the state
actually requires is factual information. Yet the Court in
Zauderer said heightened scrutiny is not required where the
state calls for “purely factual and uncontroversial
information” without prescribing a confession of faith in
what amounts to matters of opinion. Zauderer, 471 U.S. at
651. In a scientific context, as presented here, our
understanding of what is noncontroversial should not require
scientific unanimity. We should learn from the historic
episodes where hazardous product manufacturers have
themselves manufactured controversy by financing studies
to create doubt about the hazards they were creating. See
Naomi Oreskes & Erik M. Conway, Merchants of Doubt:
How a Handful of Scientists Obscured the Truth on Issues
from Tobacco Smoke to Global Warming 13 (2010).
The OEHHA warning is at least arguably sufficiently
narrowly tailored under Central Hudson Gas & Elec. Corp.
v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 564 (1980).
California offers alternatives to its warning requirements.
Where employers comply with the warning and labeling
requirements of the OSHA regulations for glyphosate, no
separate Prop 65 warning need be provided at all. See Cal.
Code Regs. tit. 27, § 25606. The statute also does not specify
any words that must be included in a Prop 65 warning label.
The preamble states:

The people of California find that hazardous
chemicals pose a serious potential threat to
their health and well-being, that state
government agencies have failed to provide
them with adequate protection, and that these
 NAWG V. BONTA 47

failures have been serious enough to lead to
investigations by federal agencies of the
administration of California’s toxic
protection programs.

AFL-CIO v. Deukmejian, 260 Cal. Rptr. 479, 480 (Cal. Ct.
App. 1989) (quoting Prop 65 preamble). Ultimately, Prop
65 was passed for precisely the reason that nothing else had
worked.
There are thus serious issues the majority glosses over
and the district court should consider. I therefore
respectfully dissent.