Agribusiness companies sue to challenge Roundup warning

Monsanto Co. and a dozen agribusiness associations filed suit in federal court Wednesday to stop the state from enforcing the placement of a Proposition 65 cancer warning about glyphosate on the herbicide Roundup and foods treated with it.

The suit is part of a two-pronged attack trying to get courts to blunt the effects of listing glyphosate as a known carcinogen in California.

Monsanto is appealing to the 5th District Court of Appeal a decision by a Fresno County Superior Court judge that upheld the listing. Monsanto Co. et al. v. Office of Environmental Health Hazard Assessment et al., F07362 (5th Dist., filed March 22, 2017).

In the federal suit, Monsanto and the associations seek declarations that the Prop. 65 listing violates the First Amendment, the Supremacy Clause and the 14th Amendment due process clause.

The associations seek injunctions prohibiting California from enforcing any regulations arising out of glyphosate’s listing. National Association of Wheat Growers et al. v. Zeise et al., 17-CV02401 (E.D. Cal., filed Nov. 15, 2017).

Philip J. Perry of Latham & Watkins LLP represents the plaintiffs. The defendants are Lauren Zeise, director of the Office of Environmental Health Hazard Assessment, and state Attorney General Xavier Becerra.

Prop. 65 requires that warnings be posted on products containing unsafe exposures to chemicals on a list overseen by the office.

If the International Agency for Research on Cancer has determined a chemical causes, or probably causes, cancer in humans, the office must automatically post it on the Prop. 65 list. The agency determined ibn 2015 that glyphosate probably causes cancer in 2015.

The office preliminarily put glyphosate on the Prop. 65 list this year and its status will become effective in March 2018. If a product contains the chemical below the “No Significant Risk Level,” also known as the “safe harbor” level, that provides an affirmative defense against having to post a warning.

Spokesman Sam Delson said the office, after a public hearing in June at which Monsanto and others testified, determined a safe harbor level of 11 micrograms of exposure of glyphosate per day. That level will go into effect next spring.

“It’s our expectation that no foods would exceed the safe harbor level, so we think it’s unlikely that there would need to be warnings on food products,” Delson said.

In their lawsuit, however, Monsanto and the agribusiness groups allege that if the Prop 65 listing is enforced they either have to include a “false and disparaging” warning, engage in costly testing to show that exposure from any glyphosate falls into safe harbor levels, or stop using glyphosate-treated crops.

The plaintiffs allege that being compelled to post a such a warning violates the First Amendment.

Such a warning also violates the U.S. Constitution’s Supremacy Clause, they argue, because federal law, which pre-empts state law, prohibits misbranding a food product where the labeling would be false or misleading.

Finally, the plaintiffs argue that the state’s listing of glyphosate violates the due process clause because, without having examined other studies that contradict the international agency’s finding, California has no rational basis for the listing.