First Amendment Litigation and California’s Prop 65September 16, 2020
Trenton Norris is a co-leader of Arnold & Porter’s Consumer Products & Retail Sector, and is one of the nation’s leading experts on California’s toxics and labeling law, Proposition 65. Ahead of the Prop. 65 Clearinghouse annual conference, where he will be speaking on a panel on First Amendment issues in California’s Prop 65 litigation, Mr. Norris was kind enough to take some time to answer the National Law Review’s questions on litigation trends in Prop 65.
Prop 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted as a ballot initiative in November 1986, and is associated with warnings for chemical exposures. Can you provide a summary or explanation of how a First Amendment challenge comes out of this landscape?
Because Prop 65 affects speech, it implicates the First Amendment. It is well-established that businesses have free speech rights and that compelling speech (in the form of mandated notices or warnings), just like prohibiting speech, must meet First Amendment standards. Businesses often believe Prop 65 warnings are misleading and they sometimes believe the warnings are untruthful. The Government can say what it wants, but there are limits on what it can force others to say.
There are two standards used to analyze First Amendment issues in commercial speech: Zauderer and Central Hudson-what are the differences between these two standards, and why is it important?
As generally understood, Central Hudson applies to restrictions on commercial speech, while Zauderer applies to compelled commercial speech.
Central Hudson says the Government can restrict commercial speech so long as its asserted interest is substantial, the restriction directly advances that interest, and the restriction is no more extensive than necessary to serve that interest. Zauderer arguably sets a lower bar: the Government can compel speech in the form of a warning or disclosure so long as it is purely factual and uncontroversial and the requirements are not unjustified or unduly burdensome. A more recent U.S. Supreme Court decision, NIFLA v. Becerra, also makes clear that disclosures cannot be required to remedy a harm that is purely hypothetical.
There is a general concern surrounding Prop 65 litigation that it is almost too easy for private enforcers to bring Proposition 65 enforcement suits. In your opinion, how does this concern impact the issues of false and deceptive statements brought up by the plaintiffs in both National Association of Wheat Growers et al. v. Becerra and CalChamber v. Becerra?
A unique feature of Prop 65 is that, contrary to centuries of Anglo-American law, the accused business bears the burden of proving its innocence. A Prop 65 enforcer need only detect the chemical, at even a minute level, and hypothesize a plausible route of exposure, and then the burden shifts…