Judge sides with agribusinesses in Roundup warning

In a First Amendment challenge to Proposition 65, a federal judge's preliminary injunction order has blocked the state from requiring agriculture companies to list a weed killer as linked to cancer.

U.S. District Judge William Shubb on Monday sided with plaintiffs Monsanto Co. and an association of agribusinesses, ruling the state couldn't compel the growers to institute a warning label stating there is a link between the chemical glyphosate and cancer.

The judge also ruled that the state itself listing the chemical under Prop. 65 is not a violation of free speech, as it is government speech that does not harm private businesses. National Association of Wheat Growers et al. v. Zeise et al., 17-CV02401 (E.D. Cal., filed Nov. 15, 2017).

In his order, Shubb said state regulators relied on one agency's classification while ignoring findings from the U.S. Environmental Protection Agency and the World Health Organization that said there was insufficient evidence of a hazardous link.

The International Agency for Research on Cancer classified glyphosate as "probably carcinogenic" based on limited evidence that it could cause cancer in humans, according to the judge.

"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 (which as noted above, only found that substance is probably carcinogenic), when apparently all other regulatory and governmental bodies have found the opposite, including the EPA, which is one of the bodies California law expressly relies on in determining whether a chemical causes cancer," the judge wrote.

The businesses sued last year to stop the forced labeling of the herbicide Roundup and foods treated with it.

Attorneys for the state argued that agribusinesses might not have to place any warning as long as the glyphosate levels are below the "safe harbor" level that is likely to be adopted before the warnings are required.

Sam Delson, spokesman for the office of Environmental Health Hazard Assessment, a defendant in the case, said the safe harbor level of glyphosate exposure is 11 micrograms per day.

However, the judge said plaintiffs still face a significant risk of injury regardless of such a safe harbor level.

"The court's First Amendment inquiry here boils down to what the state of California can compel businesses to say. Whether Proposition 65's statutory and regulatory scheme is good policy is not at issue. However, where California seeks to compel businesses to provide cancer warnings, the warnings must be factually accurate and not misleading," the judge wrote.

"As applied to glyphosate, the required warnings are false and misleading," he added. "Plaintiffs have thus established a likelihood of success on the merits of their claim that the warning requirement violates their First Amendment rights."

Plaintiffs, represented by Philip J. Perry, Richard P. Bress, and Andrew D. Prins of Latham & Watkins LLP, declined to comment. In an email, the state attorney general's office touted a portion of the judge's ruling as a win.

"As a result of the court's ruling, glyphosate will remain listed as a chemical known to cause cancer pursuant to Proposition 65. We are pleased with this part of the decision. Attorney General [Xavier] Becerra continues to believe that providing the factual, truthful and non-misleading warning required by the law does not violate a business's First Amendment rights and will provide consumers with valuable information enabling them to make informed choices."