Tag Archive for: First Amendment

California Barred from Enforcing Prop 65 DEA Warning After First Amendment Challenge

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On June 24, 2026, the U.S. District Court for the Eastern District of California entered a final judgment and permanent injunction barring the Attorney General from enforcing Proposition 65’s cancer-warning requirement for diethanolamine (DEA) in cosmetics.  The judgment adopts a stipulation that the Personal Care Products Council (PCPC) and Attorney General Rob Bonta filed the day before, resolving PCPC’s First Amendment challenge to the DEA warning.

First Amendment Arguments

As discussed in a previous post, DEA was automatically added to the Prop 65 list after the International Agency for Research on Cancer (IARC) concluded that the substance is “possibly carcinogenic to humans.”  However, in its complaint, PCPC argued that IARC did not identify any studies establishing a link between DEA and cancer in humans, relying instead on a study of “questionable relevance” in a highly susceptible strain of mice.  As a result, PCPC contended, applying the DEA Prop 65 cancer warning “in cosmetic and personal products is false, misleading, and factually controversial,” in violation of the First Amendment.

What the Parties Agreed

The Attorney General did not concede the constitutional question.  He continues to dispute that the DEA warning violates the First Amendment, but agreed to resolve the case in light of, as the stipulation puts it, “the current state of the relevant science” and three recent decisions rejecting compelled Prop 65 cancer warnings: a Ninth Circuit ruling on glyphosate, and two district court rulings on acrylamide and titanium dioxide. Under the stipulation, the Attorney General reserves the right to move to dissolve the injunction under Federal Rule of Civil Procedure 60(b) if the facts or law change.

What the Order Provides

The order declares that, based on the current state of the science, the DEA cancer warning cannot be constitutionally enforced.  It permanently enjoins the Attorney General, his officers, employees, and agents, and “all those acting in privity or concert with” them from filing or prosecuting new lawsuits to enforce the DEA warning requirement for cosmetic and personal care products.  For companies that make or sell DEA-containing cosmetics—shampoos, liquid soaps, and body washes—the order removes the Attorney General as a source of new DEA warning suits.

Because the judgment was entered on the parties’ stipulation rather than after a merits ruling, no court weighed the DEA science or held the warning unconstitutional in adversarial litigation.  Its declaratory language is tied to the current state of the science, and the Rule 60(b) reservation leaves room to revisit the injunction if that science or the law changes.

The case is The Personal Care Products Council v. Bonta, No. 2:26-cv-00682 (E.D. Cal.), complaint filed March 2, 2026.

New Mexico PFAS Labeling Rule Faces Appeal Over Free Speech, Agency Authority

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A docketing statement has been filed in a state-court challenge to New Mexico’s near-universal PFAS labeling requirements, finalized by the New Mexico Environmental Improvement Board (EIB) in April as part of a broader rule implementing the state’s PFAS Protection Act (HB 212).

The docketing statement, filed June 22, 2026, identifies four issues on appeal:

  1. First Amendment. The rule requires manufacturers to affix a PFAS label—an Erlenmeyer flask bearing the term “PFAS”—to products containing any substance meeting HB 212’s definition of PFAS.  The appellant argues that the definition is among the broadest in use by any government or regulatory body, and “encompasses substances whose status as PFAS is subject to robust scientific debate, compelling businesses to make untrue and misleading claims on their products.”
  2. Exceedance of statutory authority—exemptions. HB 212 expressly exempts sixteen categories of products from its prohibitions and reporting requirements.  The appellant contends that the rule nevertheless requires labeling for most of those exempt products, extending the rule’s reach beyond the enabling statute.
  3. Arbitrary deadline. The rule requires labels on products manufactured on or after January 1, 2027, less than nine months after the rule’s adoption.  According to the appellant, relabeling requires packaging redesign, legal and regulatory review, coordination with printers and suppliers, and production schedule alignment.  The administrative record showed manufacturers need at least 18 months to comply, but the EIB arbitrarily rejected that evidence, the appellant argues.
  4. Exceedance of statutory authority—fees. The rule imposes fees for PFAS reporting submissions, currently unavoidable use applications, and label waivers.  The appellant contends that HB 212 does not grant the EIB authority to impose fees.

The case is Diamond Vogel, Inc. v. New Mexico Environmental Improvement Board, No. A-1-CA-43483 (N.M. Ct. App.), filed 05/22/2026.

Latest Prop 65 Challenge Targets DEA After Series of Industry Wins

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A cosmetics industry trade group is asking the Eastern District of California to enjoin a Proposition 65 warning for diethanolamine (DEA), arguing that the label disclosure violates the First Amendment.

The suit was filed March 2, 2026, by the Personal Care Products Council (PCPC).  It follows a string of court victories challenging other Prop 65 warning requirements for chemicals including glyphosate, acrylamide, and titanium dioxide, the last of which was also brought by PCPC.

DEA was automatically added to the Prop 65 list after the International Agency for Research on Cancer (IARC) concluded that the substance is “possibly carcinogenic to humans.”  However, PCPC argues that IARC was unable to find a single study establishing a link between DEA and cancer in humans, instead basing the determination on a study of “questionable relevance” in a highly susceptible strain of mice.  Other regulatory bodies, like FDA and EPA, have not reached the same conclusion, and some have “expressed skepticism” about the mouse study, PCPC argues.

“Indeed, no California agency has made any scientific determination as to whether DEA causes cancer in humans.  Nor has any federal agency done so,” the complaint states.

According to PCPC, laws regulating commercial speech are typically subject to intermediate scrutiny, with a more lenient standard for purely factual and noncontroversial disclosures.  However, because the “cancer warning requirement as applied to DEA in cosmetic and personal products is false, misleading, and factually controversial, it cannot survive any level of constitutional scrutiny” and therefore violates the First Amendment, the complaint alleges.

PCPC argues that the warning requirement effectively forces companies to choose between “conveying the unsubstantiated message that DEA in cosmetic products increases cancer risk in humans” or facing “a significant and imminent risk of an enforcement action.”  Although an exception exists for products that do not present significant risk, the complaint notes that companies must be able to prove that defense in court if challenged, a costly and uncertain process that leads many to “acquiesce and provide a warning” even if they believe it is inaccurate.

PCPC also claims that, since the warning requirement took effect in 2013, hundreds of companies manufacturing or selling personal care products have paid over $7 million in settlements with private enforcers.

The trade association seeks a declaration that the warning is unconstitutional as applied to personal care products and a permanent injunction barring enforcement by California or private parties.

The case is The Personal Care Products Council v. Bonta, No. 26-cv-682 (E.D. Cal.), filed 3/2/26.

Prop 65 Warning for Titanium Dioxide Struck Down

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California’s Proposition 65 warning requirement for respirable titanium dioxide violates the First Amendment, the District Court for the Eastern District of California ruled on August 12, 2025, in The Personal Care Products Council v. Bonta, No. 2:23-cv-01006.

The decision is the latest in a series of rulings invalidating Prop 65 warnings for chemicals with disputed health risks. In 2023, the Ninth Circuit struck down a warning requirement for glyphosate, and in early 2025, the Eastern District of California invalidated a warning requirement for dietary acrylamide.  Blog posts on those cases can be found here and here.

The titanium dioxide order follows the same analytical framework. First, the court held that the warning failed the test set forth in Zauderer v. Office of Disc. Counsel, 471 U.S. 626 (1985), which allows for compelled commercial disclosures when they are “purely factual and uncontroversial.”

“[T]he parties admit that there is a clear debate over whether Listed Titanium Dioxide cases cancer in humans,” the order states.  “The Court finds the Prop 65 warning would likely improperly elevate ‘one side of a legitimately unresolved scientific debate.’”

As in the glyphosate and acrylamide cases, the court focused on how an average consumer would perceive the warning, not just whether each sentence was literally accurate.  “Even though each sentence on its own may be factually true, ‘the totality of the warning’ is nonetheless misleading,” the order states.

Second, the court found that the warning failed intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) and was therefore unconstitutional.  The court concluded that the warning does not advance California’s interest in public health because titanium dioxide’s risks are not confirmed, and the state has less burdensome alternatives—such as making information available online.

Titanium dioxide is commonly used as a whitening pigment in cosmetic and personal care products. Its Prop 65 listing applies only to “airborne, unbound particles of respirable size.”

Court Blocks Prop 65 Acrylamide Warning for Food Products

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On May 2, 2025, the District Court for the Eastern District of California ruled that California’s Proposition 65 (Prop 65) warning requirement for dietary acrylamide constitutes unconstitutional compelled speech, granting a permanent injunction barring its enforcement in California Chamber of Commerce v. Bonta, No. 2:19-cv-02019.

The court acknowledged that the entirety of the warning requirement—which included a notice of possible exposure to acrylamide and a reference to findings by one of several organizations regarding its cancer risks—was literally true. However, the court held that the warning was nonetheless “misleading and controversial,” and therefore unconstitutional, because it ignored a “vigorous scientific debate” over whether acrylamide’s cancer findings in rodents can be extrapolated to humans.

“[M]isleading statements about acrylamide’s carcinogenicity do not directly advance” California’s interest in “preserving the health of its citizens,” the ruling states.  “Accordingly, Prop 65’s warning requirement as to acrylamide in food fails intermediate scrutiny under the First Amendment.”

The court also rejected California’s arguments that the warning was not compelled because businesses are exempted if they can demonstrate that the chemical does not pose a significant risk at the product’s exposure levels.  Because businesses relying on the exemption “run the risk of incurring substantial costs in defending against enforcement actions,” the court held that the exemption does not offer a true “reprieve from Prop 65’s warning requirement.”

The court had previously enjoined a Prop 65 warning for dietary acrylamide in 2021. The California Office of Environmental Health Hazard Assessment (OEHHA) subsequently revised the warning language and weakened it further following a 2023 Ninth Circuit decision striking down a similar Prop 65 warning for glyphosate.

That Ninth Circuit decision provided the basis for much the court’s ruling, including its position that a literally true disclosure can still be misleading in context.  A blog post on that case can be found here.

California Glyphosate Warning Requirement Ruled Unconstitutional Compelled Speech

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California’s requirement that glyphosate-containing products display a carcinogen warning violates the First Amendment, a Ninth Circuit Court of Appeals panel ruled in a 2-1 decision on November 7, 2023. The decision in the case Nat’l Assoc. of Wheat Growers v. Bonta affirmed a district court’s summary judgment and injunction against the requirement.

Proposition 65 (known as “Prop 65”) requires that any product intentionally containing a chemical on California’s list of known carcinogens warn customers of the product’s carcinogenicity. Glyphosate, one of the most widely used herbicides and the active ingredient in the weed killer Roundup, was automatically added to the list of Prop 65 carcinogens following a 2015 determination by the International Agency for Research on Cancer that glyphosate is “probably carcinogenic to humans.” Other organizations, such as EPA, have not found that glyphosate poses a risk to humans, however.

According to the court, compelled commercial speech must pass intermediate scrutiny unless it is “purely factual and uncontroversial information,” in which case a lesser level of scrutiny applies. The panel found that this exemption was not applicable because whether glyphosate is carcinogenic is subject to scientific debate. The panel then determined that the labeling requirement did not survive intermediate scrutiny because “warn[ing] consumers of a potential ‘risk’ never confirmed by any regulatory body” does not directly advance California’s interest in preserving public health.

The warning was previously struck down by a California district court on the grounds that its phrasing would be misleading to customers, it was not purely factual and uncontroversial, and a more equivocal warning would likely not comply with Prop 65. In this case, the panel analyzed three new proposed warning messages from California’s Attorney General and another from California’s Office of Environmental Health Hazard Assessment (OEHHA) but concluded that these warnings were also not purely factual and uncontroversial.

Judge Consuelo M. Callahan wrote for the panel and was joined by Judge Patrick J. Bumatay. Writing in the dissent, Judge Mary M. Schroeder argued that, at minimum, the new OEHHA warning should be remanded to the district court. Schroeder argued that the majority applied inappropriate precedent in determining what makes a statement uncontroversial, failed to examine the actual content of the warning, and ignored the fact that EPA’s most recent determination that glyphosate is unlikely to cause cancer was vacated by the Ninth Circuit in Nat. Res. Def. Council v. U.S. Env’t Prot. Agency (2022) because it was not supported by substantial evidence.

Court denies motion to stay SEC conflict minerals rule, disclosures required by June 2.

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Last week, the saga of the U.S. Securities and Exchange Commission’s (SEC) conflict minerals disclosure rule took another turn as the U.S. Court of Appeals for the District of Columbia Circuit denied an emergency motion filed by industry groups to stay the rule. The rule, known as Exchange Act Rule 13p-1, was authorized by section 1502 of the Dodd-Frank Act and requires companies to make their first disclosures about their use of conflict minerals – such as gold, tantalum, tin, and tungsten from the Democratic Republic of Congo and adjacent countries – by June 2, 2014. The motion for stay was filed by three trade groups: the National Association of Manufacturers, the U.S. Chamber of Commerce, and the Business Roundtable.

We previously reported that in April, the D.C. Circuit Court of Appeals partially struck down the conflict minerals disclosure rule in National Association of Manufacturers v. Securities and Exchange Commission, finding that the rule’s requirement that companies describe whether their products have been found to be “DRC conflict free” constituted compelled commercial speech in violation of the First Amendment. Following that decision, the SEC released a statement on April 29 clarifying how companies should make disclosures under Rule 13p-1 while the court case continues. In that guidance, the SEC said companies need not use the phrase “DRC conflict free,” although companies could elect to do so as long as an independent private sector audit (IPSA) was conducted. Companies required by the rule to file a Conflict Minerals Report should describe “the due diligence that the company undertook.” In the case of products that cannot be determined to be DRC conflict-free, companies should disclose “the facilities used to produce the conflict minerals, the country of origin of the minerals and the efforts to determine the mine or location of origin.”

On May 2, the SEC itself issued a stay [PDF] applying to “those portions of [the rule] subject to the Court of Appeals’s constitutional holding… pending the completion of judicial review, at which point the stay will terminate.”

Following the Court’s denial of the motion for stay, companies must file their first Rule 13p-1 disclosures by June 2 in accordance with the SEC’s April 29 guidance. Yesterday, the Court held its en banc rehearing of oral arguments in a related case, American Meat Institute v. USDA, which the SEC has not sought to join.

D.C. Circuit Court partially strikes down SEC conflict minerals rule.

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On Monday, a federal appeals court struck down a rule implementing the Dodd-Frank Act’s requirement that companies disclose whether their products contain conflict materials originating from the Democratic Republic of Congo (DRC), or adjoining countries. A divided (2-1) panel of the U.S. Court of Appeals for the D.C. Circuit ruled [PDF] that the U.S. Securities and Exchange Commission (SEC) rule compelled commercial speech in violation of the First Amendment.

Industry groups challenged the SEC’s final rule on Administrative Procedure Act (APA), Exchange Act, and First Amendment claims. In National Association of Manufacturers v. Securities and Exchange Commission, the industry groups appealed the District Court’s rejection of their claims, but only prevailed with respect to the First Amendment challenge.

The APA claim in part attacked the rule’s lack of a de minimis exception. As we reported in November, because the SEC rule does not contain a de minimis exception, the disclosure requirement – which also calls for due diligence and auditing – could apply to firms that use conflict minerals in very small amounts as catalysts in the manufacturing process. The Court upheld the decision not to include a de minimis exception, finding that the SEC, “relying on text, context, and policy concerns, inferred that Congress wanted the disclosure regime to work even for small uses,” and a de minimis exception would thwart the statute’s goals.

The Exchange Act challenge also failed, as the Court found that the SEC’s cost-benefit analyses as required by the Exchange Act were “reasonable,” even though the rule’s “compelling social benefits” were not quantifiable.

However, the Court sided with the industry groups with regard to the SEC rule’s requirement that companies describe its products as not “DRC conflict free” in reports filed with the Commission and on the companies’ own websites. Writing for the Court (and joined by Judge Sentelle), Judge Randolph found that rational basis review was not appropriate for this type of speech, because it only applies to “purely factual and uncontroversial information,” in cases in which “disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” In this case, the SEC did not argue that the rule related to preventing consumer deception. Judge Randolph concluded that requiring the use of the “conflict free” label was found to convey a “moral responsibility for the Congo war,” tantamount to “compelling an issuer to confess blood on its hands” in interference with the First Amendment.

The Court further found that the SEC’s rule failed to meet the intermediate standard for commercial speech set out in Central Hudson, which “invalidates regulations for which narrower restrictions on expression would serve the government’s interest as well.” (Quotations omitted.) In this case, the SEC presented no evidence that less restrictive means would be ineffective, and the Court rejected its argument that the rule’s minimal impact was dispositive of the “narrowly tailored” requirement.

Notably, Judge Srinivasan declined to join the Court’s opinion with respect to the First Amendment claim, arguing that the issue should have been held in abeyance and part of the SEC rule stayed until the Circuit’s en banc re-hearing of a related case, American Meat Institute v. United States Department of Agriculture, regarding meat labeling.

Moving forward, the rule’s effective date for compliance is June 2, and the SEC has not yet offered a stay or guidance to companies on how to comply with the partially-invalidated rule. The SEC has also not yet announced whether it will seek to participate in the AMI case; otherwise, the case will be remanded to the D.C. District Court.