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Wednesday, February 26, 2020

Ag coalition files motion for permanent summary judgment against Prop 65 regarding glyphosate safety

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By Rich Peters | Oct 3, 2019


SACRAMENTO – A nationwide coalition of agricultural producers and business organizations representing a substantial segment of U.S. agriculture filed a motion on Sept.25 for a permanent summary judgment against the California Attorney General regarding the state’s cancer warning requirement for products containing glyphosate under California’s Proposition 65.

In February 2018, Judge William Shubb of the U.S. District Court for the Eastern District of California granted a preliminary injunction enjoining the state from compelling companies to add a warning to any product containing glyphosate that it is a carcinogen. The decision was made in response to the coalition's claim that the cancer warning requirement violated their First Amendment rights. The matter was then delayed while a pair of cases that touched on pertinent law were completed. 

Those cases are done, and the coalition said nothing in them would compel the court to change its ruling in this matter, thus the petition seeking to make the injunction permanent.

“California cannot compel Plaintiffs to broadcast a warning that is misleading, inaccurate, or controversial,” the motion reads. “The Proposition 65 warning, as applied to glyphosate, is all three. As this Court explained in granting the preliminary injunction, ‘[it] is inherently misleading for a warning to state that a chemical is known to the state of California to cause cancer based on the finding of one organization ...  when apparently all other regulatory and governmental bodies have found the opposite,’ and ‘given the heavy weight of evidence in the record that glyphosate is not in fact known to cause cancer, the required warning is factually inaccurate and controversial.’”

That glyphosate might be considered carcinogenic arises from an article published by one organization – the International Agency for Research on Cancer (IARC), based in Lyon, France – which posits that, based on reading published material, glysopgate is "probably carcinogenic," the coalition said in its motion. Further, it states that that view stands at odds against virtually every other scientific organization in the world, in which glyphosate is considered noncarcinogenic.

Still, the California Office of Environmental Health Hazard Assessment (OEHHA) sought to compel all glyphosate products to carry a warning based solely upon the reading of that one article, the coalition said.

“Despite the overwhelming contrary views of the U.S. government, the international regulatory community, and even OEHHA itself that glyphosate is not carcinogenic, OEHHA listed glyphosate under Proposition 65 as a chemical ‘known to the state to cause cancer.’ OEHHA acknowledged that it made this listing mechanically – without conducting its own scientific analysis – based solely on the fact that IARC had issued a monograph concluding that glyphosate is ‘probably’ carcinogenic to humans. OEHHA refused to consider comments critiquing IARC’s process and conclusion, and disclaimed any ability to address the underlying scientific dispute or reassess ‘the weight or quality of the evidence considered by IARC,’” the motion states.

The motion for summary judgment comes amid the nationwide Roundup litigation cases in which plaintiffs allege that glyphosate, the product’s active ingredient, was a substantial factor in causing their non-Hodgkin’s lymphoma.

Bayer, which purchased Monsanto last year, has lost three cases of its kind in California so far, two at the state level and one at the federal level. The company has filed post-trial motions to reverse the verdicts and has appealed the damages awarded in all three. More than 18,000 people have now filed suit against Monsanto.

The German pharmaceutical giant insists that its product is safe and EPA-approved and has resisted global settlements with plaintiffs.

The next case outside of California is set to begin Oct. 15 in Monsanto’s longtime hometown of St. Louis. After initially being postponed from its September start, Walter Winston, et al v. Monsanto will pit a group of cancer patients against the company in a trial unlike its predecessors.

The coalition behind the motion for summary judgment includes 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, Monsanto Company, Associated Industries of Missouri, Agribusiness Association of Iowa, CropLife America and Agricultural Retailers Association.

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