You Might Find This Interesting: The Dueling First Amendment Claims in the Ninth Circuit's Cancer-Warning Case

Steven D. Schwinn, University of Illinois Chicago School of Law

A Ninth Circuit case over California's cancer-warning requirement raises interesting competing First Amendment claims. In particular, the case tests free-speech rights of businesses against government compelled warnings versus the right-to-access rights of private litigants who sue to enforce those warnings. In the latest chapter, the full Ninth Circuit today leaned in favor of the businesses.

The case, California Chamber of Commerce v. Council for Education and Research on Toxics, tests California's Prop 65, which requires "clear and reasonable warning" on any "chemical known to the state to cause cancer or reproductive toxicity." The law authorizes government officials and private litigants to sue to enforce it.

The California Chamber sought a preliminary injunction to stop the state AG and CERT, a private organization, from suing to enforce Prop 65 as applied to foods and drinks that contain acrylamide. The district court granted the injunction, and a three-judge panel of the Ninth Circuit affirmed. The court affirmed the district court findings that there's a "robust disagreement by reputable scientific sources over whether acrylamide in food causes cancer in humans," that the warning for acrylamide was misleading, and that defendants who used an alternative warning system faced a "heavy litigation burden" in Prop. 65 lawsuits. For these reasons, the court held that Prop. 65 likely violated the commercial-speech rule under Zauderer v. Office of Disciplinary Counsel.

Today the full Ninth Circuit declined to review the ruling. The dissent argued that the panel ruling violated a different, competing First Amendment right, CERT's right to access to justice under the Petition Clause. The dissent claimed that the panel impermissibly expanded the "illegal objective" exception to the right to access to justice. That exception, from a footnote in Bill Johnson's Restaurants, Inc. v. NLRB, says that the NLRB could enjoin suits that have "an objective that is illegal under federal law." For example, the NLRB could halt lawsuits by unions for enforcement of fines that could not lawfully be imposed under the National Labor Relations Act. Today's dissent argued that the earlier panel impermissibly expanded the exception in two ways: (1) it expanded the exception to non-labor cases, beyond how any other circuit court has ruled; and (2) it expanded the exception based only on a prediction (not a final merits determination) that the underlying lawsuit pursued an "illegal objective" (here, a violation of the Zauderer rule, because the earlier panel ruling only held that Prop. 65 was likely to violate free speech).

Well, anyway, I thought this was kinda interesting, and I thought you might, too.