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50 Ecology L.Q. 481 (2023)
First Amendment Constraints on Proposition 65

handle is hein.journals/eclawq50 and id is 475 raw text is: First Amendment Constraints on Proposition 65 Jacob Manheim* The Safe Drinking Water and Toxic Enforcement Act of1986, better known as Proposition 65, requires businesses to warn individuals before exposing them to chemicals that are known to the State of California to cause cancer or reproductive harm. The law endured for more than three decades without any successful free speech challenges to its compelled warnings. However, the legal landscape fundamentally changed in 2018 when the Supreme Court seemingly expanded First Amendment protections for professional speech in National Institute of Family and Life Advocates v. Becerra. Justice Thomas's majority opinion made clear that laws compelling commercial speech are subject to heightened scrutiny unless the compelled speech is purely factual, noncontroversial, and not unduly burdensome. Business groups, eternally opposed to placing cancer warnings on their products, seized upon the new legal framework and successfully challenged the warning requirements for two of Proposition 65's most controversial listed chemicals acrylamide and glyphosate. This Note examines the fate of Proposition 65 in the aftermath of California Chamber of Commerce v. Council for Education & Research on Toxics, a 2022 Ninth Circuit case that affirmed a preliminary injunction against enforcement of the acrylamide cancer warning. While future First Amendment challenges may lead to injunctions against some existing warnings and restrict Proposition 65's ability to respond to chemicals of emerging concern, this Note concludes that the voter-enacted law will continue to play a significant role in safeguarding public health. DOI: https://doi.org/10.15779/Z38CJ87M9P Copyright © 2024 Regents of the University of California. * JD Candidate, University of California, Berkeley, School of Law, 2024; MPH in Environmental Health Sciences, University of California, Berkeley, School of Public Health; BS in Geology, University of California, Los Angeles. I would like to express my thanks to Karen Chen, Natalie Friedberg, and Geraldine Burrola for many insightful comments. 481

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