In a 2-1 decision, the 9th U.S. Circuit Court of Appeals in San Francisco said it was unconstitutional for California to require Bayer AG's Monsanto unit, which makes Roundup weedkiller, and other agriculture companies to include a warning label for glyphosate.
According to the publication, "In 2015, the International Agency for Research on Cancer (IARC) identified glyphosate as “probably carcinogenic” to humans. As a result, under the current regulatory scheme implementing Prop 65, the California Office of Environmental Health Hazard Assessment (OEHHA) was required to place glyphosate on the State’s list of known carcinogens. Due to that listing, Prop 65 also requires certain businesses whose products expose consumers to glyphosate to provide a clear and reasonable warning to those consumers that glyphosate is a carcinogen."
The suit was initially brought in the U.S. District Court for the Eastern District of California by a coalition of agricultural producers and businesses that use glyphosate in their herbicide products. The coalition filed the lawsuit in late 2017 in response to the California Office of Environmental Health Hazard Assessment's (OEHHA) decision to list the chemical under Prop 65, which requires businesses to provide a warning to consumers before they sell a product in California that can cause exposure to a listed chemical. They claimed that mandating glyphosate warnings under Prop 65 violated their First Amendment right to be free from compelled speech because the scientific conclusiveness of glyphosate being a carcinogen remains hotly contested.
The National Association of Wheat Growers was the lead plaintiff and the other thirteen organizations participating in the lawsuit were:
NATIONAL CORN GROWERS ASSOCIATION
UNITED STATES DURUM GROWERS ASSOCIATION
WESTERN PLANT HEALTH ASSOCIATION
MISSOURI FARM BUREAU
IOWA SOYBEAN ASSOCIATION
SOUTH DAKOTA AGRI-BUSINESS ASSOCIATION
NORTH DAKOTA GRAIN GROWERS ASSOCIATION
MISSOURI CHAMBER OF COMMERCE AND INDUSTRY
MONSANTO COMPANY
ASSOCIATED INDUSTRIES OF MISSOURI
AGRIBUSINESS ASSOCIATION OF IOWA
CROPLIFE AMERICA
AGRICULTURAL RETAILERS ASSOCIATION
"The proposed warning that 'glyphosate is known to cause cancer' was not purely factual because the word 'known' carries a complex legal meaning that consumers would not glean from the warning without context and thus the word was misleading. Moreover, saying that something is carcinogenic or has serious deleterious health effects -- without a strong scientific consensus that it does -- is controversial" a three-judge panel of the 9th Circuit said in its ruling.
Bayer's Involvement
Since Bayer acquired glyphosate creator Monsanto for $63 billion in 2018, they have faced extensive litigation over misleading marketing claiming their product Roundup weedkiller is environmentally safe, despite its reputation of cancer-contributing ingredients.
Back in 2020, Bayer reached an agreement to resolve the legacy Monsanto litigation for $10.9 billion. Since then it has replaced its glyphosate-based products in the U.S. lawn and gardening divisions but has yet to make changes to its agricultural products.
"Our company is grounded in the well-being of our customers. As a science-based company committed to improving people’s health, we have great sympathy for anyone who suffers from disease, and we understand their search for answers. At the same time, the extensive body of science indicates that Roundup™ does not cause cancer, and therefore, is not responsible for the illnesses alleged in this litigation. We stand strongly behind our glyphosate-based herbicides, which are among the most rigorously studied products of their kind, and four decades of science support their safety and that they are not carcinogenic", says Bayer CEO Werner Baumann.
According to Reuters, "The office of California Attorney General Rob Bonta, which defended the warning, did not immediately respond to requests for comment. Neither Bayer nor lawyers for the company and the agricultural producers immediately responded to similar requests."
