Glyphosate’s Prop 65 listing may affect everyone in the supply chain

Virtually anyone who has ever visited California is familiar with the Proposition 65 warnings that have become a ubiquitous part of life in the Golden State. Officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, the proposition sought to protect California’s drinking water sources from being contaminated with chemicals known to cause cancer, birth defects, or other reproductive harm.

Part of Prop. 65’s mandate requires the state to maintain and update a list of chemicals known to California to cause cancer or reproductive toxicity. Exposure levels also are listed. If a chemical exceeds the particular safe harbor level set for that chemical, any product containing that chemical in an amount above that level must bear a Prop. 65 warning. Such warnings now can be found at the entrance to many retail establishments, including grocery and hardware stores, and are found on a wide range of consumer products.

As of July 7, the Proposition 65 list includes just over 1,000 chemicals with one of the most recent additions being glyphosate. Listed with cancer as its type of toxicity, no exposure level was listed for glyphosate, though 1,100 micrograms per day has been proposed.

Glyphosate is the active ingredient in Monsanto’s herbicide Roundup. First introduced in 1974, Monsanto has described Roundup as a “breakthrough for farming.” Monsanto lists its glyphosate products as being registered in more than 130 countries and approved for weed control in more than 100 crops. Monsanto developed eight specific crops: alfalfa, canola, corn, cotton, sorghum, soybeans, sugar beets and wheat, which are genetically modified to be resistant to Roundup.

Glyphosate also is sometimes used as a desiccant being applied to wheat just prior to harvest to aid in drying. While this practice does appear to occur in some parts of the United States, it is not thought to be prevalent.

Controversy surrounding glyphosate has been going on for years. Simply typing “glyphosate” into your favorite search engine will reveal millions and millions of hits, and what you will notice almost immediately is the suggestion that glyphosate is a carcinogenic. Monsanto has vigorously pushed back on these allegations for years, but in 2015 there was a major turning point, one that ultimately led to glyphosate’ s inclusion on the Prop. 65 list.

In 2015 the World Health Organization’s International Agency for Research on Cancer, known as IARC, identified glyphosate as a “probable human carcinogenic.” IARC’s finding stood in stark contrast to the fact that glyphosate previously had been approved as safe by regulatory agencies in the United States, the European Union, Japan and Canada, among others.

In 2016, following IARC’s statement, California’s Office of Environmental Health Hazard Assessment, known as OEHHA, announced that glyphosate would be added to the list of Prop. 65’s cancer causing chemicals. OEHHA cited IARC noting that California law requires that certain substances identified by the IARC be listed as known to cause cancer under Prop. 65. Specifically, California Labor Code Section 6382(b)(1) refers to substances identified as human or animal carcinogens by IARC. OEHHA is tasked with evaluating whether a chemical’s listing is required by Prop. 65.

Monsanto filed suit against OEHHA and argued that OEHHA cannot essentially delegate its decision making authority to IARC, a foreign body with no accountability to the California electorate. Numerous parties intervened on both sides of the case. In March, Fresno County Superior Court Judge Kristi Kapetan dismissed Monsanto’s challenge finding that California law allows the state to designate an outside entity for fact-finding tasks. Judge Kapetan also ruled that glyphosate’s inclusion on the Prop. 65 list does not necessarily require Monsanto to provide a warning label as it could bring a declaratory relief action and attempt to show that glyphosate poses no significant risk of causing cancer in humans. Judge Kapetan also observed that OEHHA “has the discretion to determine that glyphosate poses no significant risk of causing cancer even if glyphosate is placed on the Proposition 65 list.” Monsanto appealed, but was not granted the requested stay. As such, in July OEHHA added glyphosate to the list of Prop. 65 chemicals with the warning requirements scheduled to take effect in summer of 2018.

What is clear from all of this is that the impact of OEHHA’s decision to list glyphosate and the eventual outcome of the pending appeal will be far reaching. First, if affirmed, OEHHA will be able to continue to rely on certain determinations of IARC. Second, in terms of warning labels, the impact of this goes far beyond simply Monsanto affixing a Prop. 65 warning label on Roundup products. The reason for this is the presence or suspected presence of glyphosate in finished food products.

This is likely to affect everyone in the supply chain from growers to manufacturers, to distributors to retailers as focus turns to the objective quantification of glyphosate in finished food products and how much glyphosate will be permitted before a warning label must attach. Depending on how these questions are answered, we could be on the precipice of a new wave of Prop. 65 litigation thus making glyphosate Monsanto’s pending appeal one to watch.