California To Appeal No Proposition 65 Warning Label Requirement For Glyphosate

Legal News

According to a press release issued by the Office of the Attorney General California Department of Justice, California Attorney General Xavier Becerra filed a notice of appeal in the lawsuit National Association of Wheat Growers, et al. v. Becerra. The appeal challenges the June decision made by a judge for the U.S. District Court for the Eastern District of California that barred Proposition 65 warnings for glyphosate-based pesticides. 

“Prop 65” was passed by California voters in 1986. The ballot initiative requires businesses and landlords to provide warnings to residents about products, places of business or homes, etc. that may result in exposure to chemicals that may be carcinogenic, or cause birth defects. 

Glyphosate is the main active ingredient in several herbicide products, including Roundup. Both the chemical and the product were invented by the Monsanto Corporation, which was acquired by Bayer AG in 2018. To date, there are over 125,000 Roundup lawsuits. Plaintiffs allege that Roundup Weed Killer products caused them to develop non-Hodgkin’s lymphoma. Bayer initially agreed to settle a majority of the lawsuits for nearly $11 billion. However, the settlement is in jeopardy and litigation may continue, depending on what happens in a hearing between Bayer attorneys and plaintiff’s attorneys on Sept. 24. 

Thus far, none of the 125,000 cases have been settled. Outside of the settlement, three cases have gone to trial, all resulting in wins and large monetary awards for plaintiffs. Bayer has appealed all three cases. 

For a time, glyphosate was issued a Prop. 65 warning. In 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) listed glyphosate as a chemical “known to the State to cause cancer.” The state’s decision was based on the 2015 conclusion by the International Agency for Research on Cancer’s (IARC) classification of glyphosate as a known animal carcinogen and “probable human carcinogen.”  

Despite the classification and sheer volume of lawsuits, the Environmental Protection Agency (EPA),  glyphosate is “unlikely to be a human carcinogen.” The fact that the EPA and other federal agencies have not deemed glyphosate a carcinogenic ingredient to humans, led to the June decision. 

In filing the appeal, CA Attorney General Becerra said, “Today, we’re fighting for the right of Californians to make informed decisions about the products they buy and use.” Becerra added, “We won’t let pesticide producers sweep the dangers of cancer-causing pesticides under the rug. Our families are already grappling with an unprecedented public health crisis. The least we can do is help protect them from avoidable health hazards.”

After the Superior Court of Fresno County upheld the listing, and the subsequent affirmation of the ruling by an appeals court, Monsanto and agricultural industry groups sued the California Attorney General. Their central argument was that requiring companies to provide a cancer warning for glyphosate under Proposition 65 was inconsistent with the First Amendment. 

According to the press release, Attorney General Becerra intends to dispute the First Amendment basis. Prop. 65, he will argue, “does not bar the State from requiring companies to inform Californians before exposing them to a chemical which an authoritative body, such as IARC, has classified as both an animal carcinogen and a probable human carcinogen.” 

Becerra added, “This is precisely the kind of information the voters wanted when they adopted Proposition 65 more than thirty years ago.”

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