June 29, 2020

California Federal Court Bars Enforcement of Proposition 65 Warning on Glyphosate Products

In a memorandum and order on summary judgment issued Monday, June 22, 2020, Judge William B. Shubb in the Eastern District of California issued a permanent injunction blocking enforcement of California’s Proposition 65 warnings for the herbicide glyphosate in National Association of Wheat Growers et al., v. Becerra. (Case No. 2:17-cv-02401). Monsanto and several farming associations had filed suit in 2017 challenging the warning requirement for the herbicide glyphosate recently added to California’s Proposition 65 chemical list, arguing that requiring companies to include Proposition 65-compliant warnings on glyphosate products violated their First Amendment rights by forcing them to make “false, misleading, and highly controversial statements.”

Judge Shubb had previously issued a preliminary injunction blocking Proposition 65 warnings for glyphosate in 2018; this new decision affirms his previous conclusions that sufficient evidence does not exist to show that glyphosate causes cancer, and that requiring a warning for products containing glyphosate under Proposition 65 standards violates the plaintiffs’ First Amendment rights. In support of these conclusions, the Court stated that the Proposition 65 warning is not “purely factual and uncontroversial” under the First Amendment, as required for compelled commercial speech, and would likely cause irreparable harm by infringing on the plaintiffs’ First Amendment rights. The Court further found that “misleading statements about glyphosate’s carcinogenicity, and the state’s knowledge of that purported carcinogenicity, do not directly advance” California’s interest. Moreover, Judge Shubb stated that “California has options available to inform consumers of its determination that glyphosate is a carcinogen, without burdening the free speech of businesses.”

In the same order, the Court denied California Attorney General Xavier Becerra’s cross motion for summary judgment. Becerra had introduced additional studies suggesting a link between glyphosate and cancer and criticism of the EPA’s finding that glyphosate was not a cancer risk. The Court found that Becerra’s proffered information “does not establish that California knows that glyphosate causes cancer [….] the fact remains that every government regulator […] has found that there was no or insufficient evidence that glyphosate causes cancer.” Judge Shubb further rejected influence of recent jury verdicts in cases against Monsanto regarding glyphosate products, stating: “The fact that there have been three jury verdicts against Monsanto based on glyphosate does not render the [Proposition 65] warning purely factual and uncontroversial.”

Glyphosate was added as a cancer-causing chemical under California’s Proposition 65 in 2017 after the International Agency for Research on Cancer classified glyphosate as “probably carcinogenic” to humans based on evidence that it caused cancer in experimental animals and could cause cancer in humans. For now, glyphosate remains on the list, but the Court’s injunction blocking the enforcement of Proposition 65 warnings for glyphosate products is a notable victory for the industry.

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