LOS ANGELES – In the face of onerous labeling restrictions, farmers and businesses in the Golden State continue a battle to keep a toxic warning label off of products that contain glyphosate - the key ingredient in the popular weedkiller Roundup.
First implemented in 1986, Proposition 65 – the Safe Drinking Water and Toxic Enforcement Act – was passed with the intention of protecting the state’s drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm.
The law requires businesses to inform consumers about exposures to such chemicals and requires the state to maintain and update a list of toxic, but doing so has turned into a logistical nightmare for the state over the past four decades.
With glyphosate high on the list of potential Proposition 65 suitors, given a flood of litigation against the maker of Roundup, the U.S. Environmental Protection Agency (EPA) in August blocked the labeling of products linking the chemical to cancer.
"The state of California’s much criticized Proposition 65 has led to misleading labeling requirements for products, like glyphosate, because it misinforms the public about the risks they are facing,” said the EPA in a statement.
Following the EPA’s announcement, a nationwide coalition of agricultural producers and business entities representing a substantial portion of the U.S. agriculture community filed a motion for summary judgment in October in the Eastern District of California against the state’s attorney general regarding the Proposition 65 cancer warning requirement for products containing glyphosate. Last year, the court entered a preliminary injunction enjoining the application of the proposition’s warning requirement.
“California cannot compel plaintiffs to broadcast a warning that is misleading, inaccurate, or controversial,” the coalition’s 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.’”
The coalition is led by 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 Co., Associated Industries of Missouri, Agribusiness Association of Iowa, CropLife America and Agricultural Retailers Association, among others.
The California Office of Environmental Health Hazard Assessment (OEHHA) has sought to compel all glyphosate products to carry a warning based solely upon the studies that they choose to use, the coalition claims.
“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,’” the coalition's motion states. “OEHHA acknowledged that it made this listing mechanically – without conducting its own scientific analysis.”
The motion comes amid nationwide Roundup litigation in which plaintiffs allege that glyphosate was a substantial factor in causing their cancer, specifically non-Hodgkin’s lymphoma.
But with a growing list of products that have made Proposition 65 warning labels a commonality throughout the state, some experts wonder why Roundup manufacturer Monsanto (acquired in 2018 by Bayer) still continues to push so hard against a potential glyphosate warning.
"I know Prop. 65 and I've done cases under Prop. 65 and I don't know why that's a big deal," said Brian Kabateck, founding and managing partner of Kabateck LLP in Los Angeles. "The state of California has come out with a huge list of things that are Prop. 65 listed so I'm not sure why at the end of the day that would be a sticking point - I don't know why Monsanto would care.
“I’ve litigated against Bayer in the past, they’re very hard fighters; they don’t roll over easily,” he said.
Bayer has lost three Roundup cases so far. In each, the initial damages, which exceeded a total of $2 billion, were slashed, but Bayer is seeking to reverse those verdicts in their entirety.
Recent reports have stated that the number of similar lawsuits filed has doubled over the past three months, reaching more than 42,700 nationwide. After months of delays, several of them are expected to get under way in early 2020 in the Bay Area and in Monsanto’s longtime hometown of St. Louis.