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Monday, October 14, 2019

Injunction stops glyphosate from needing California's Prop 65 cancer warning label

By Tomas Kassahun | Mar 29, 2018

SACRAMENTO, Calif. (Legal Newsline) – The U.S. District Court for the Eastern District of California has partially ruled in favor of businesses and agricultural groups tht opposed the warning requirement for the herbicide glyphosate under Proposition 65 over allegations it violated their First Amendment rights.

The ruling made on Feb. 26 by U.S. District Judge William Shubb denied the plaintiffs' request for a preliminary injunction enjoining the state from listing glyphosate under California codes as a chemical "known to the state of California to cause cancer," but granted the request for preliminary injunction of the warning requirement.

The plaintiffs are National Association of Wheat Growers, National Corn Growers Association, United States Durum Growers Association, Western Plant Health Association, Iowa Soybean Association, South Dakota Agri-Business Association, North Dakota Grain Growers Association, Missouri Chamber of Commerce and Industry, Monsanto Co., Associated Industries of Missouri, Agribusiness Association of Iowa, Croplife America and Agricultural Retailers Association. 

The defendants are Lauren Zeise, director of the Office of Environmental Health Hazard Assessment; and Xavier Becerra, attorney general of the State of California.

According to the opinion, glyphosate is a widely used herbicide used to control weeds and is an active ingredient in Roundup, which is manufactured by plaintiff Monsanto Co.  

California violates the First Amendment by requiring businesses to use a warning label that lists glyphosate as a chemical that can cause cancer, the plaintiffs alleged.  

In examining the case, the court reviewed Proposition 65, which says “the governor of California is required to publish a list of chemicals known to the state to cause cancer.”

The court also referred to the part of Proposition 65 that “prohibits any person in the course of doing business from knowingly and intentionally exposing anyone to the listed chemicals without a prior ‘clear and reasonable’ warning.”

Although the International Agency for Research on Cancer classified glyphosate as “probably carcinogenic” to humans, the court in this case said “several other organizations, including the EPA and other agencies within the World Health Organization have concluded that there is no evidence that glyphosate causes cancer.”

Based on that statement, the court said “Proposition 65 provides that no warning is required for a product where an exposure poses no significant risk assuming lifetime exposure at the level in question.”

According to the court, California can’t force businesses to provide cancer warnings in this case because the information would be misleading.

"While it may be literally true that California 'knows' that glyphosate causes cancer as the state has defined that term in the statute and regulations, the required warning would nonetheless be misleading to the ordinary consumer," the opinion stated.

Although the IARC classified glyphosate as “probably carcinogenic” in 2015, the court said the research was based on evidence that “it caused cancer in experimental animals and limited evidence that it could cause cancer in humans.”

“As applied to glyphosate, the required warnings are false and misleading,” the district court said. “Plaintiffs have thus established a likelihood of success on the merits of their claim that the warning requirement violates their First Amendment rights.”

The defendants said any warning for glyphosate that says “known to cause cancer” isn’t misleading because Proposition 65 says chemicals are “known” to the state to cause cancer when they are classified by the IARC as “[p]robably carcinogenic to humans” and there is sufficient evidence of carcinogenicity in experimental animals. 

Still, the court didn’t agree, saying the average person wouldn’t be able to understand that there hasn’t been much evidence to prove the warning.

“A reasonable consumer would not understand that a substance is 'known to cause cancer' where only one health organization had found that the substance in question causes cancer and virtually all other government agencies and health organizations that have reviewed studies on the chemical had found there was no evidence that it caused cancer,” the district court said. “Under these facts, the message that glyphosate is known to cause cancer is misleading at best.”

The court added that Proposition 65 doesn’t require the plaintiffs to use the phrase “known to the state of California to cause cancer” and “plaintiffs may not have to provide warnings if their products fall below the safe harbor level that will likely be adopted.”

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U.S. District Court for the Eastern District of California