ELR Citation: 52 ELR 20036
No(s). 21-15745 (9th Cir. Mar 17, 2022)

The Ninth Circuit affirmed a district court order granting a nonprofit business group's motion to preliminarily enjoin California's attorney general from filing or prosecuting new lawsuits to enforce the state's Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products. The business group argued the requirement violated the First Amendment both on its face and as applied to acrylamide in food products. Another nonprofit group intervened, arguing that an injunction would impose an unconstitutional prior restraint on its First Amendment rights. The district court granted the motion for preliminary injunction, finding the business group was likely to succeed on the merits because the other group had not shown that the cancer warning was "purely factual and uncontroversial," and rejecting its prior restraint claim. The appellate court found the district court did not abuse its discretion in concluding that the warning was controversial or in finding it misleading, and that the record supported its finding that Proposition 65's enforcement regime created a litigation burden on manufacturers who use alternative warnings. It also found that a preliminary injunction against likely unconstitutional legislation was not an unconstitutional or otherwise impermissible prior restraint. The court affirmed the district court's preliminary injunction.