CA Grants Injunction to Stop Prop 65 Titanium Dioxide Warnings

On June 12, 2024, the United States District Court for the Eastern District of California (District Court) entered an order granting a preliminary injunction brought by the Personal Care Products Council (PCPC), which alleged that the California Office of Environmental Health Hazard Assessment (OEHHA) requirement for warnings under Proposition 65 (Prop 65) relating to titanium dioxide in cosmetics and personal care products violated the First Amendment. The Personal Care Products Council v. Bonta, No. 2: 23-cv-01006-TLN-JDP (ED Cal. 2024). In its order, the district court enjoined the California Attorney General and any private citizen from enforcing Prop 65’s warning requirement regarding “cancer applied to listed titanium dioxide (i.e. i.e. titanium dioxide consisting of unbound airborne particles of respirable size) in cosmetics. and personal care products. The district court also denied a motion to intervene filed by Environmental Health Advocates, Inc. (EHA), which had argued that it was “an interested party because it is primarily responsible for enforcing Prop. 65”.

This is the third case successfully challenging Prop 65 warnings on First Amendment grounds, with previous cases involving glyphosate and acrylamide, as discussed in our FIFRA blog. See Natl. Assoc. wheat producers c. Bonta85 F.4th 1263 (9th Cir. 2023); Cal. Chamber of Comm. c.Bonta, 529 F. Supp. 3d 1099 (ED Cal. 2021). These are important cases with implications for companies facing Prop 65 warning requirements for other substances where the scientific basis underlying listing may also be unclear and controversial.

Background

Titanium dioxide has been on the Prop 65 list since 2011, based on the International Agency for Research on Cancer (IARC) Group 2B classification. Group 2B classification is based on sufficient evidence of carcinogenicity in animals but insufficient evidence of carcinogenicity in humans. Since then, PCPC members have received numerous notices of violations from private agents, many of which have been settled, “while other enforcement actions have resulted in over one hundred (100) lawsuits in the Superior Courts of California.” Order at 5. Also since then, additional research has been conducted that “has cast doubt on the IARC conclusion that titanium dioxide is possibly carcinogenic to humans, and it remains somewhat of a scientific debate on titanium dioxide (and therefore on listed titanium dioxide). carcinogenicity in humans. Identifier.

PCPC filed its complaint on May 26, 2023 and its motion for preliminary injunction on October 6, 2023. EHA filed its motion to intervene on September 12, 2023.

A private executor deprived of the right to intervene

With respect to its motion to intervene, the district court found that EHA had not met its burden of demonstrating that OEHHA did not adequately represent EHA’s interests, stating that it had concluded that “EHA and (OEHHA) had identical interests in this action – upholding the constitutionality of Prop 65’s warning requirements with respect to listed titanium dioxide.” Order at page 8. The district court found that EHA failed to convincingly demonstrate inadequate representation, which is a necessary element for a “motion to intervene as of right.” The district court further found that EHA had failed to meet its burden of “permissive intervention,” noting that granting intervention could delay the proceedings and that nothing ‘stated that the EHA would “contribute significantly to the full development of the factual issues underlying the trial.” and the fair and equitable resolution of the legal issues presented. Order at 11am.

Preliminary injunction against execution for lack of Prop 65 warning

The district court noted that the injunction is an “extraordinary remedy” that “preserves the parties’ relative positions until a trial on the merits can be held.” Order at page 12. PCPC has met its burden of demonstrating that it would likely succeed on the merits, that it would suffer irreparable harm in the absence of an injunction, and that an injunction is appropriate. both fair and in the public interest.

The PCPC’s likelihood of success on the merits depends on its ability to demonstrate that the Prop 65 warning violated its First Amendment rights against coerced speech. The district court applied the commercial speech standard set forth in Zauderer v. Disciplinary Counsel Office, which applies to mandatory disclosure of “purely factual” and “non-controversial” information and concluded that the Prop 65 warning for listed titanium dioxide could be “misleading” and is therefore neither factual nor non-factual. controversial. In the order, the district court states that the Prop 65 warning was misleading to the average consumer by stating that the listed titanium dioxide causes cancer in humans when the IARC classification is based on insufficient evidence of carcinogenicity in humans. Order at 3-4 p.m. The district court also states that a finding of irreparable harm “will almost always follow” a finding that a plaintiff “is likely to succeed on the merits of his or her constitutional claim.” Finally, the district court held that the balance between the actions and the public interest favored the PCPC, because it was the PCPC’s First Amendment rights that were being violated.

Comment

This case, along with related cases involving glyphosate and acrylamide, continue to set precedent and guidelines for First Amendment and commercial speech violation claims in the context of Proposition 65. An interesting difference between this case and others is that OEHHA added the listed titanium dioxide. to its Prop 65 listing more than a decade ago, while the glyphosate and acrylamide cases opened fairly immediately after listing. After hundreds of actions by private law enforcement, the PCPC reversed course and, at least for now, won.

Additionally, OEHHA appears to have taken notice and, on May 10, 2024, proposed a non-significant risk level (NSRL) for titanium dioxide (unbound airborne particles of respirable size). The issuance of two NSRLs, once final, will not necessarily stop private authorities, but it will complicate cases and help companies that can demonstrate that exposure to titanium dioxide in their products does not exceed the relevant NSRL as as established by OEHHA.