Agriculture, consumers, and the environment prevailed against California’s attempt to require producers to incorrectly declare that glyphosate causes cancer. At issue was California’s Proposition 65 requiring its Office of Environmental Health Hazard Assessment to maintain “a list of those chemicals known to the state to cause cancer.” Prop 65 requires that this list automatically include any substances listed as human or animal carcinogens by the International Association for Research on Cancer (IARC), a group that has categorized everyday items like coffee, aloe vera, and foods exposed to “high temperatures” like French fries as carcinogenic. Products containing these substances are then required to carry a warning label.
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. Recognizing the risk to the national agricultural economy and sustainable wheat production that would result from the loss of glyphosate as a valuable farming tool, as well as confusion among consumers when glyphosate has undergone decades of regulatory and safety review, the National Association of Wheat Growers (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 regime.
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.
Prop 65’s labeling requirement would have effectively required any product to bear a warning stating that the product contains a chemical known to California to cause cancer under Prop 65, when in fact the worldwide regulatory consensus is that glyphosate is not carcinogenic. 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.” 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.
In recent years, there has been a dramatic increase in consumer interest around sustainability and increased public calls for agriculture to use more environmentally friendly practices. Glyphosate is one of the tools that can help achieve this goal. It is one of the longest and most extensively tested pesticides on the market. Promoting sustainable farming practices, glyphosate allows farmers to be efficient in their crop production, producing more while using fewer resources. It allows farmers to maintain soil health in their fields and promotes carbon sequestration by adopting no-till practices. No-till farming helps crops better maintain soil moisture percentages and allows soil to better maintain carbon and nutrients. No-till also means farmers are using their equipment less, consequently decreasing CO2 emissions.
Farmers already face overwhelming hurdles in their businesses and do not need states implementing additional barriers based on incorrect facts and junk science. NAWG proudly stands with American agriculture, and this case shows the difference that can be made when an organization takes a stand to defend our members’ continued use of crop protection tools with facts, science, and truth on our side.
Dave Milligan farms in Cass City, located in Michigan’s “thumb” with his wife Kris and son Mike raising wheat, corn, soybeans, and dry edible beans. Dave currently serves at the 2020-2021 president of the National Association of Wheat Growers and is the outgoing 9-year chairman of the Michigan Wheat Program.