State high court rejects Monsanto warning label challenge

The state Supreme Court rejected a challenge by Monsanto Co. to review California's decision to list the main chemical in its weed killer as a carcinogen -- the same ingredient a San Francisco Superior Court jury found to be the cause of a dying man's cancer.

But due to a federal judge's preliminary injunction earlier this year, Monsanto does not have to post any warning labels on the herbicides -- for now.

The decision, announced Wednesday, affirmed lower court rulings upholding the state's authority to list glyphosate as a Proposition 65 carcinogen.

"The Office of Environmental Health Hazard Assessment (OEHHA) and Proposition 65 deal with this important public health issue in a fair and scientific-based way," said OEHHA spokesperson Sam Delson. "We believe the state Supreme Court and Court of Appeal have been correct in finding that there's no reason to short circuit the process -- that the process as it exists fairly assesses the risks, and there's no reason to change it."

Justice Ming Chin, in a lone dissent, voted to take the issue up for review.

Proposition 65 requires the state to list chemicals with a known association to cancer and birth defects. The International Agency for Cancer Research or IARC, state Environmental Protection Agency, National Toxicology Program and state-qualified experts appointed by the governor determine chemicals that belong on the list.

The agrochemical company challenged lower court rulings on the basis that outside expert scientific findings, in this case the International Agency for Cancer Research, should not be considered when adding chemicals to the Proposition 65 list of carcinogens.

"This Court should grant review of these issues... of statewide importance: regulation of the most widely used herbicide in the state -- glyphosate -- based on IARC's finding of carcinogenicity using a process that was unreliable, unreviewable, and unaccountable to the People of California," wrote Monsanto attorney Trenton H. Norris of Arnold & Porter Kaye Scholer LLP.

Norris did not respond for comment.

Monsanto did not challenge the scientific validity of IARC's conclusion but the procedural reliance by OEHHA to use the agency's findings. People v. Office of Environmental Health Hazard Assessment et al., S249056 (CA S.C., filed Aug. 15, 2018).

"As the Court of Appeal in Fresno found, there is no viable argument that the state's reliance on the most respected body in the world to determine whether a substance causes cancer is unconstitutional," said Stephen Berzon, who was an attorney for the respondents United Steel Workers of America and the Environmental Law Foundation. "The whole point of Prop. 65 was that the decision would be made by respected neutral bodies and not just by regulatory agencies susceptible to political influence and lobbying by special interests."

IARC's determination that glyphosate is a probable human carcinogen was sufficient to meet the criteria for listing despite the Environmental Protection Agency disagreeing with its determination, according to Delson.

The state added glyphosate, the main ingredient in Monsanto's Roundup and Ranger Pro herbicides, to the list in July 2017. The company challenged the second prong of Proposition 65 requirements, which would have mandated it to post a warning label on its products notifying users of the chemical's association with cancer.

U.S. District Judge William Shubb of Sacramento granted a preliminary injunction against the state prohibiting California from forcing the company to post warning labels because it would be a violation of its free speech. National Association of Wheat Growers et al. v. Becerra, 17-CV02401 (E.D. Cal., filed Nov. 15, 2017).

"He agrees with Monsanto that the sky might fall if the label goes on," said Center for Food Safety attorney Adam Keats, who filed a motion for leave to intervene when the case was in Fresno County Superior Court. "Therefore, he froze the status quo while the case is pending. ... It's disappointing, but it's not a final ruling on the merits."