Ninth Circuit: Prop 65 Warnings Can Count As Compelled Speech

Under the Supreme Court's commercial speech jurisprudence, businesspeople do not check their First Amendment rights at the gate when they enter the marketplace. In a significant application of this principle, a panel of the Ninth Circuit ruled in November that California may be barred from requiring businesses to "disclose" through labeling scientifically dubious and misleading allegations about their products. The case arose under California's unique and burdensome Proposition 65, which I've written about many times. Prop 65 requires merchants to post warnings, on labels or public spaces at their business, against product exposures that could cause cancer or birth defects, a list that at various times has included such things as candles, fireplace logs, coffee, French fries, Christmas lights, hammers, billiard cue chalk, matches, grilled chicken, life- saving drugs, brass doorknobs, car exhaust in parking garages, and on and on. "Practically speaking," the law firm Sidley has noted, "Prop 65 creates an 'over- warning' problem: The law requires warnings for so many products and situations that the warnings themselves become meaningless." The law is jealously guarded, though, because most of the money from the resulting settlements goes to the lawyers, who form a potent Sacramento lobby against reform.