Court Grants Reprieve from Warning Obligations Related to Glyphosate for California Proposition 65 on Basis of Inadequate Scientific Evidence

Merton Howard Shannon Nessier 
Merton Howard and Shannon Nessier
March 2, 2018

In a significant decision out of the Eastern District of California, Judge William Shubb issued a preliminary injunction staying warning obligations related to the addition of glyphosate to a list of chemicals in California under its so-called “right to know” statute, Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.5-25249.14 (“Proposition 65”). In issuing the injunction, the Court found that there is not sufficient evidence to support the determination that glyphosate is known to the State of California to cause cancer, and therefore the warning requirements set to take effect this July as a result of its listing are constitutionally invalid compelled speech.

The stay of the warning obligations is an important victory for a number of key food and agribusiness companies, but likely not the end of this battle.

Background

California’s Proposition 65 prohibits any person in the course of doing business from knowingly and intentionally exposing anyone to certain listed chemicals without providing a “clear and reasonable” warning. Failure to comply can result in penalties up to $2,500 per day for each failure, and subject the manufacturer/seller to costly enforcement actions by designated government/agency attorneys, as well as private citizens who may recover attorney’s fees. Cal. Health & Safety Code § 25249.7(b).

A chemical may be added to the Proposition 65 list after any one of certain entities, including the Environmental Protection Agency (“EPA”), the Food and Drug Administration (“FDA”), and the International Agency for Research on Cancer (“IARC”), provide confirmation of its status as a carcinogen or reproductive toxicant. In 2015, IARC classified glyphosate as “probably carcinogenic” to humans based on evidence that it caused cancer in experimental animals and limited evidence that it could cause cancer in humans, despite the fact that several other organizations, including the EPA and agencies within the World Health Organization, concluded that there is no evidence that glyphosate causes cancer.

As a result of IARC’s classification of glyphosate as probably carcinogenic, OEHHA listed glyphosate as a chemical known to the state of California to cause cancer on July 7, 2017, and thus the attendant warning requirement would take effect on July 7, 2018.

Current Action

In response to the listing and impending warning obligations, a collaboration of agribusiness companies and retailers, spearheaded by Monsanto, as well as chambers of commerce from a number of states, filed this motion for an injunction staying the listing of glyphosate and/or the enforcement of the attendant warning obligations. They claimed the listing and the warning obligation, when based on insufficient evidence, were violations of their First Amendment right against compelled speech. On Monday, the District Court issued its order agreeing that the compelled warning is a violation of the First Amendment given the lack of evidence of glyphosate’s link to cancer in humans.

In issuing the injunction staying enforcement of the warning obligations, the Court found the matter ripe, that the moving parties were likely to prevail on the merits (at least as to the warning obligation), and that if not stayed, the warning obligation would cause them irreparable harm.

The Court rejected defendants’ claims that the challenge was unripe because plaintiffs may not have to provide any warning if their products’ glyphosate levels are below the anticipated “safe harbor” level. Instead, it found that regardless of the State’s possible enactment of a safe harbor level, there is undeniable evidence from prior listings that plaintiffs face the significant risk of injury from still being subject to enforcement actions notwithstanding a defense of compliance with the safe harbor level. The court further noted that even forcing plaintiffs to pay to test their products, given the insufficient evidence on glyphosate’s carcinogenic impacts, is a cognizable harm.

The Court rejected the argument by plaintiffs that the mere listing of glyphosate is a violation of the First Amendment, instead focusing on the warning obligations set to take effect in July.

The Court explained that in cases of compelled speech, 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. Here, the Court found that the required warning would be misleading to the ordinary consumer.

Despite hollow attempts by defendants to suggest that plaintiffs could use a less misleading warning to reflect the uncertain nature of the link between glyphosate and cancer, the Court got to the heart of the matter in speaking to the incredible burden of the Proposition 65 warning provisions: “Under the applicable regulations, in order for a warning to be per se clear and reasonable, the warning must state that the chemical is known to cause cancer. California regulations also discourage, if not outright prohibit, language that calls into doubt California’s knowledge that a chemical causes cancer.” Given these guidelines, the Court rightly understood no lesser warning would avoid the risk to plaintiffs of unmerited lawsuits and thus irreparable harm.

In speaking to these issues with the evidence related to the status of glyphosate as a carcinogen, the Court went on to say that “the required warning for glyphosate does not appear to be factually accurate and uncontroversial because it conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glyphosate causes cancer.”

Finally, the Court also addressed the public interest in enforcing the warning requirement, again finding for the plaintiffs. Judge Shubb found that misleading or false labels undermine California’s interest in accurately informing its citizens of health risks at the expense of plaintiffs’ First Amendment rights.

Because only the warning enforcement was stayed and not the listing itself, this fight is far from over. We can expect significant efforts from both sides as this issue moves forward, and the fate of glyphosate under California’s Proposition 65 remains unclear.