Monsanto scores victory over California in fight over Roundup cancer warnings

The best-selling weedkiller will remain free of a Proposition 65 cancer warning label in California.

by Hillel Aaron, Court House News, November 7, 2023

A Ninth Circuit panel sided with agrochemical giant Monsanto Tuesday in its legal dispute with the state of California over cancer warnings placed on the weedkiller Roundup and other products containing glyphosate, the world's most commonly used herbicide.

Under Proposition 65, a ballot measure passed by California voters in 1986, products that include chemicals which are known to cause cancer, birth defects or other reproductive harm must have warning labels. There are currently around 900 chemicals that trigger such a warning.

In 2015, the United Nations' International Agency for Research on Cancer (IARC) identified glyphosate as “probably carcinogenic” to humans — a conclusion that remains hotly contested within the scientific community — the U.S. Environmental Protection Agency says glyphosate "is not likely to be carcinogenic to humans" — but that nevertheless got glyphosate added to the Proposition 65 list in 2017.

Shortly after, Monsanto sued along with with a number of other groups representing agribusinesses, like the National Association of Wheat Growers and the National Corn Growers Association, arguing that the warning label would "communicate a disparaging health warning with which they disagree," and violated their First Amendment rights to be free from "compelled speech."

After a federal judge issued a preliminary injunction barring California from requiring the cancer labels, then-Attorney General Xavier Becerra offered two alternative warning labels that he said would comply with Proposition 65 but not violate the plaintiffs' First Amendment rights. Option 1 stated glyphosate was "a chemical listed as causing cancer pursuant to the requirements of California law." Option 2 further elaborated: "The listing is based on a determination by the United Nations International Agency for Research on Cancer that glyphosate presents a cancer hazard. The U.S. Environmental Protection Agency has tentatively concluded in a draft document that glyphosate does not present a cancer hazard."

Unmoved, the lower court ruled in favor of Monsanto and the agribusiness groups in 2020, permanently barring California from requiring any of the cancer warning labels on Roundup and other products containing glyphosate.

"Providing misleading or false labels to consumers also undermines California’s interest in accurately informing its citizens of health risks at the expense of plaintiffs’ First Amendment rights,” wrote U.S. District Court Judge William Shubb in his decision.

Current state Attorney General Rob Bonta appealed. During oral arguments this past April, a lawyer for the state told the three-judge panel, "Even though EPA has a different view of the science, it concludes that this warning provides a sufficient description of its position that is neither false nor misleading.”

The judges disagreed. In a 2-1 decision, the panel ruled California's warning labels "were not purely factual and uncontroversial," due to "the unresolved scientific debate over glyphosate’s carcinogenicity."

The opinion, written by U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee, cited a dissent by a judge in 1985 in a case about warnings on cellphones.

"An oversaturation in warnings for minor risks tends to diminish the believability and credibility of warnings in general, and that such warnings are tantamount to 'crying wolf,'" Callahan wrote, adding: "Although commandeering speech may seem expedient, it is seldom constitutionally permissible."

U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, signed off on the opinion. U.S. Circuit Judge Mary Schroeder, a Jimmy Carter appointee and the second longest serving judge on the Ninth Circuit, dissented, arguing that the case should at very least be remanded for Shubb to consider the constitutionality of the alternative warning labels.

The second alternative, Schroeder wrote, "consists of five factually accurate sentences informing users that the product can expose them to a substance the IARC has determined probably causes cancer."

She added: "We have no guidance from the Supreme Court on compelled commercial speech in the sphere of product liability and consumer protection."

Schroeder also pointed out that the Ninth Circuit just last year ordered the EPA to take another look at glyphosate's risk to humans and the environment, writing, "There remains no adequate basis for reliance on the EPA."

A spokesman for Germany-based Bayer, which owns Monsanto, praised the ruling. "This ruling strikes a strong blow against compelled warnings for Roundup that are not supported by science and will be important in the company’s ongoing personal injury litigation that focuses on the Roundup label.”

Monsanto has been sued numerous times over Roundup and lost at least three high-profile trials, with judges and juries ordering the company to pay more than $200 million to different plaintiffs who claimed Roundup caused their cancers. It's also moved to settle thousands of other claims.

But the company has won at least five other similar trials. Nonetheless, in 2021 Bayer said it would stop selling products containing glyphosate to regular consumers by this year in order to avoid future litigation.

A spokesperson for Bonta said in an email, "We are disappointed by the decision. Beyond that, we have no additional comment at this time."