SAN FRANCISCO (Legal Newsline) - California can’t order the manufacturer of Roundup weedkiller to place a cancer warning on the product because it would be misleading to consumers and violate the First Amendment, a federal appeals court ruled.
A three-judge panel of the Ninth Circuit Court of Appeals upheld a 2020 decision by a federal judge prohibiting California from requiring a cancer warning on products containing glyphosate, the active ingredient in Roundup. California Attorney General Rob Bonta sought to enforce the warning under Proposition 65, a law that requires companies to place labels on anything the state “knows to cause cancer.”
The problem is, there is no scientific consensus glyphosate causes cancer in humans under real-world scenarios, the Ninth Circuit said in a Nov. 7 ruling. The U.S. Constitution allows the government to compel speech that is “purely factual” and “uncontroversial,” the court said, and the claim Roundup is carcinogenic is neither. While the International Agency for Research on Cancer (IARC) has declared glyphosate “probably carcinogenic,” the vast majority of regulators including the U.S. Environmental Protection Agency disagree.
“Although commandeering speech may seem expedient, it is seldom constitutionally permissible,” wrote Judge Consuelo Callahan, a George W. Bush appointee. “Considering the current vigorous debate surrounding the scientific validity of glyphosate’s carcinogenicity, forcing plaintiffs to convey that message cannot be said to be an uncontroversial proposition.”
Judge Mary Schroeder dissented, saying California’s proposed warning label would contain factual statements including that IARC believes glyphosate was carcinogenic but that the EPA and others don’t. The state removed language from earlier proposals that would have stated, in line with Prop. 65 requirements, that “glyphosate is known to cause cancer.”
“The majority says that compelling a message `at odds with its mission’ is a harbinger of controversy, yet every warning of a product’s risk to consumers bears a message at odds with the manufacturer’s mission to sell more products,” wrote the Jimmy Carter appointee.
Regardless of this victory, Roundup manufacturer Bayer AG faces billions of dollars in liability as juries side with plaintiff experts and hand down verdicts based on the belief glyphosate causes cancer. A San Diego jury last week ordered Bayer’s Monsanto unit to pay $332 million – including $325 million in punitive damages -- to a man who claimed he was exposed to enough glyphosate spraying weeds at home to develop non-Hodgkin lymphoma, a common cancer associated with aging. It was the second recent jury verdict for plaintiffs after Monsanto won a string of defense victories.
California revised its proposed warning after the 2020 ruling in district court but the Ninth Circuit said the new version was “not materially different” because it “still conveys the overall message that glyphosate is unsafe which is, at best, disputed.”
California has an interest in protecting its citizens against hazardous chemicals, the court said. But “compelling sellers to warn consumers of a potential `risk’ never confirmed by any regulatory body—or of a hazard not `known’ to more than a small subset of the scientific community—does not directly advance that interest,” the court said.
The Ninth Circuit last year rebuffed the EPA’s attempt to declare glyphosate entirely safe, the judge went on, ruling in favor of the Natural Resources Defense Council that more research was needed.