SAN FRANCISCO (Legal Newsline) - A federal judge in California won't let the state impose cancer warnings on the active ingredient in Roundup weedkiller, saying “providing misleading or false labels to consumers …undermines California’s interest in accurately informing its citizens of health risks.”
Bayer AG’s Monsanto unit joined a coalition of agricultural associations to challenge the requirement under California’s Proposition 65, which requires manufacturers to place warning labels on any product containing substances the state believes to cause cancer. The law also allows lawsuits by private attorneys, who have targeted a variety of products from fried chicken to coffee to plastic Pepsi bottles.
In a 34-page decision granting a permanent injunction on June 22, U.S. District Judge William Shubb found that the threat of expensive Prop 65 litigation alone would violate the plaintiffs’ First Amendment rights against compelled speech. While California has been pushing Monsanto to place a cancer warning on its products, the U.S. Environmental Protection Agency explicitly prohibits the company from doing so.
Meanwhile, the ruling doesn't seem to be stopping Bayer from plans to settle a large percentage of the Roundup lawsuits. Reports this week say the company's board is voting on a settlement of $8 billion to $10 billion.
The company has lost three trials so far in which jurors have sided with plaintiff experts to find that Roundup causes cancer, despite a nearly universal conclusion by regulatory agencies around the world that it does not. Shubb did not consider those verdicts persuasive, saying “whether a reasonable juror could find glyphosate causes cancer” is a separate question from whether stating definitely it does cause cancer
When deciding whether a product requires a Prop 65 label, the state refers to findings by several agencies including the EPA and the International Agency for Research on Cancer, which is affiliated with the World Health Organization. In 2015, the IARC classified glyphosate as “probably carcinogenic,” based mostly on animal studies, and in conflict with epidemiological studies involving tens of thousands of agricultural workers that have found no higher incidence of cancer.
The non-voting chairman of the IARC committee that declared glyphosate dangerous was Chris Portier, a scientist who signed on as a paid plaintiff expert shortly after IARC reached its conclusion.
Judge Shubb issued a preliminary injunction in February 2018, finding the Prop 65 warning was “not purely factual and uncontroversial.” Requiring the labels would expose Monsanto and the growers to “the threat of private suits and the costs of testing their products to avoid or defend such suits,” the judge ruled.
California has been a hotbed for litigation over warning labels. Even if the state declined to enforce Prop 65 against Monsanto and the growers, the judge noted, the law allows private lawyers to sue for daily penalties of $2,500 plus attorneys’ fees. A California appeals court has described the process of filing a private Prop 65 lawsuit as “easy – and almost absurdly easy at the pleading stage.”
California cities have also become aggressive proponents of warning labels. The U.S. Court of Appeals for the Ninth Circuit knocked down a local ordinance requiring a large warning label on sugar-sweetened beverages.
But cellphone manufacturers failed to block a similarly controversial ordinance in Berkeley that requires them to warn consumers that carrying a phone in their pocket or “tucked into a bra” might expose them to higher levels of radio waves than recommended by federal guidelines.
The manufacturers successfully defeated a broader warning stating the WHO had declared cellphone radio emissions to be “probably carcinogenic.” The Ninth Circuit allowed the milder statement about government guidelines to stand, however, and after a trip to the U.S. Supreme Court, a three-judge panel again upheld the ordinance last year. The panel ruled the warning label was a factual statement, although it acknowledged that in some cases, “a statement may be literally true but nonetheless misleading and, in that sense, untrue.”
Judge Shubb cited the cellphone litigation and other cases, saying consumers can’t be expected to understand the legal meaning of statements like the State of California believes something to be carcinogenic because of the finding of a single agency when in fact most regulators believe the opposite.
“Notwithstanding the IARC’s determination that glyphosate is a `probable carcinogen,’ the statement that glyphosate is `known to the state of California to cause cancer’ is misleading,” the judge wrote. “Every regulator of which the court is aware, with the sole exception of the IARC, has found that glyphosate does not cause cancer or that there is insufficient evidence to show that it does.”
The judge dismissed a California appeals court decision allowing the state to include glyphosate on its own list of Prop 65 suspected carcinogens, saying that was state speech, not compelled commercial speech.
The judge also criticized the state for repeatedly proposing revised warning labels that “the state would never allow under normal circumstances, absent this lawsuit.”
The Supreme Court has established an intermediate level of scrutiny for speech courts consider to be “commercial,” allowing restrictions on speech if they directly advance a government interest. The government can even require businesses to disclose “purely factual and uncontroversial information” if it is reasonably related to a government interest and not unduly burdensome, such as requiring lawyers to inform clients that a contingency fee arrangement isn’t always cost free.