A federal judge has reaffirmed his earlier decision that the state of California cannot require a cancer warning label on glyphosate-based products such as Roundup under its Proposition 65 law.
“Providing misleading or false labels to consumers … undermines California’s interest in accurately informing its citizens of health risks at the expense of plaintiffs’ First Amendment rights,” U.S. District Judge William Shubb said in his opinion, released Monday.
The lawsuit was brought in 2017 by the National Association of Wheat Growers, and other grower groups, as well as Monsanto, which was purchased by Bayer in 2018.
“This is a very important ruling for California agriculture and for science as a federal court, after weighing all the facts, has concluded that the evidence does not support a cancer warning requirement for glyphosate-based products, which farmers all over the world depend on to control weeds, practice sustainable farming, and bring their products to market efficiently,” Monsanto said.
“From the beginning we made our case based on facts and science and this is a great win for wheat growers and farmers across the United States,” said NAWG President and Cass City, Mich., wheat farmer Dave Milligan.
Shubb issued a preliminary injunction blocking the state’s warning in February 2018, and subsequently affirmed his conclusions when the state asked him to reconsider. His reasoning has not changed.
“The court’s initial conclusion remains the same,” Shubb said. Despite the finding in March 2015 by the International Agency for Research on Cancer that glyphosate probably causes cancer in humans, “the statement that glyphosate is ‘known to the state of California to cause cancer’ is misleading. 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.”
IARC is part of the United Nations’ World Health Organization and is not a regulatory body.
The judge said the main dispute in the case is whether the warning “is of purely factual and uncontroversial information. The state has the burden of demonstrating that a disclosure requirement is purely factual and uncontroversial, not unduly burdensome, and reasonably related to a substantial government interest.”
The warning is not “purely factual and uncontroversial,” likely would cause “irreparable harm” by its infringement on First Amendment rights, and does not advance a substantial government interest, Shubb found.
“Misleading statements about glyphosate’s carcinogenicity, and the state’s knowledge of that purported carcinogenicity, do not directly advance” the state’s interest, Shubb said.
The judge also took a shot at California Attorney General Xavier Becerra. “Ironically, the Attorney General, while arguing that glyphosate is a carcinogen, has argued that the likely amount of glyphosate that the average consumer will be exposed to is orders of magnitude lower than would be required to exceed the state’s no significant risk level.
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“In other words, defendant on the one hand proclaims the need to broadcast glyphosate’s cancer risk while at the same time declaring there is no risk for the vast majority of consumers,” Shubb said.
He also rejected the notion that jury verdicts in favor of plaintiffs who allege exposure to Roundup caused their cancer should figure in his decision.
“The fact that there have been three jury verdicts against Monsanto based on glyphosate does not render the warning purely factual and uncontroversial,” he said.
In addition to Monsanto, members of the plaintiff coalition include the National Association of Wheat Growers, National Corn Growers Association, United States Durum Growers Association, Western Plant Health Association, Missouri Farm Bureau, Iowa Soybean Association, South Dakota Agri-Business Association, North Dakota Grain Growers Association, Missouri Chamber of Commerce and Industry, Associated Industries of Missouri, Agribusiness Association of Iowa, CropLife America, and the Agricultural Retailers Association.
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