Attorney General Xavier Becerra is challenging a recent federal court decision barring Proposition 65 cancer warnings for glyphosate-based herbicides.
The judge in the case called it misleading to consumers for the state to list the ingredient under the disclosure law, as well as a violation of First Amendment rights for Monsanto. He ruled that the warning was not “purely factual and uncontroversial.”
Becerra filed a notice of appeal for the lawsuit. He intends to argue that the First Amendment 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. This is precisely the kind of information the voters wanted when they adopted Proposition 65 more than thirty years ago.
"We won’t let pesticide producers sweep the dangers of cancer-causing pesticides under the rug,” said Becerra. He cited a finding from the International Agency for Research on Cancer, which is a part of the World Health Organization and not a regulatory body.
The National Association of Wheat Growers (NAWG) disagrees. NAWG led a coalition of top agriculture groups from across the country in a federal lawsuit against the State of California to prevent private parties from being forced to mislabel food made from agricultural products that may have been treated with glyphosate as a carcinogen under California’s Prop 65.
"Used by many wheat farmers and widely among agriculture, the herbicide glyphosate is a safe, effective, economical, and environmentally benign product approved for use in agricultural crop applications in the United States," noted Dave Milligan, president of the National Association of Wheat Growers, in a recent opinion piece.
On June 22, 2020, the Eastern District of California sided with the Coalition, "citing science and facts as the main reason for its decision and ruling that Prop 65’s warning label requirement for chemicals known to the state of California to cause cancer, as applied to glyphosate, violates the First Amendment to the United States Constitution," Milligan said.
Prop 65’s labeling requirement would have effectively required any product to carry a warning stating that the product contains a chemical known to California to cause cancer under Prop 65.
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"In fact the worldwide regulatory consensus is that glyphosate is not carcinogenic," Milligan emphasized. "Farmers, food producers, and businesses up and down the food chain could have faced civil penalties of up to $2,500 per day per violation for failure to provide the Prop 65 warning. Farmers’ livelihoods were in jeopardy from a blatantly flawed regulation, so our leaders decided to act."
At each stage in the litigation, the presiding judge, William Shubb of the U.S. District Court for the Eastern District of California, recognized that “virtually all…government agencies and health organizations that have reviewed studies on [glyphosate] have found there was no evidence that it caused cancer," Milligan said.
"On June 22, 2020, Judge Shubb issued summary judgment and a permanent injunction enjoining the warning requirement as applied to glyphosate, finding that “the heavy weight of evidence in the record is that glyphosate is not known to cause cancer” and that therefore the First Amendment prohibits California from requiring glyphosate-containing products to be so labeled. It is a notable victory for a multitude of reasons, and demonstrates that laws and regulations that are arbitrary or that ignore facts and scientific data must fail, and that an agriculture coalition defending farmers’ use of legally registered and scientifically reviewed crop protection tools can compel this just result through proper use of the legal system."
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