SAN FRANCISCO (CN) — A lawyer for the state of California told a Ninth Circuit panel Wednesday that whatever the EPA thinks about the carcinogenicity of the weedkilling ingredient glyphosate, the science is clear and the Golden State should be able to require a warning label on the products.
In 2020, U.S. District Court Judge William Shubb permanently barred California from such requirements, ruling that the scientific evidence pointing to the carcinogenicity of glyphosate is too scant to warrant a warning and that forcing companies to include a warning on their labels would be compelled speech in violation of the First Amendment. He noted the California Department of Pesticide Regulation agreed to require warning labels only after the International Agency for Research on Cancer ruled in 2015 that there was a probable link between glyphosate exposure and cancer.
The U.S. Environmental Protection Agency released an interim decision years ago concluding there is a lack of evidence the chemical causes cancer in humans. But this past June, the Ninth Circuit ordered the EPA to reexamine its determination that glyphosate likely poses no “unreasonable risk” to the environment or human health, finding the agency shirked its duty to adequately consider whether the main ingredient in the weed killer Roundup causes cancer.
Monsanto, maker of the weedkiller Roundup, lost three high-profile lawsuits in previous years with juries and judges ordering the company to pay $80 million, $78 million and $87 million, respectively, to plaintiffs who claim Roundup caused their cancers. The company has since moved to settle thousands of similar suits.
In March, Bayer AG, which bought Monsanto in 2018 for $63 billion, settled one of several class action battles over claims that its Roundup products lack cancer warning labels for $45 million. The company has also vowed to remove glyphosate-based products from retail store shelves by 2023 to prevent future litigation.
At Wednesday's hearing, California Supervising Deputy Attorney General Laura Zuckerman said Shubb's ruling was in error because the warning about the chemical is factual.
“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,” Zuckerman said.
U.S. Circuit Judge Mary Schroeder, a Jimmy Carter appointee, said that based on her understanding of Proposition 65 — the law that requires companies to disclose cancer risks in their products — the agency is following the guidance finding the chemical can cause cancer and that means the state is asking to disclose factual evidence.
The other judges on the panel pushed back, noting discord among scientific experts.
“If it’s in front of a court, I think that courts could say 99% of the people agree on something in the scientific community,” U.S. Circuit Judge Consuelo Maria Callahan, a George W. Bush appointee, said. “There’s always going to be outliers. But here, you have people who have much more expertise than (me) that don't necessarily agree.”
Monsanto attorney Richard Bress said California's warning is not factual on its face due to scientific disagreement. He claimed that by requiring a company to carry a Proposition 65 warning symbol with a note that a person’s risk varies on level of exposure, any reasonable consumer is going to assume it will cause harm.
“It’s basically a flashing danger sign,” Bress said.
He claimed that the Proposition 65 website does not indicate any scientific disagreement about the chemical’s dangers. The website actually states "other agencies have reached different conclusions regarding the carcinogenicity of glyphosate."
“If I’m communicating the ingredient list of my product, I've got very little reason not to communicate that,” he said. “But if the government is requiring me to communicate a third party’s or the government's opinion that is disparaging of my product, that entrenches far more on my First Amendment right.”
U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, asked why the case should not be remanded for Shubb to handle.
“We’ve been playing whack-a-mole for six years,” Bress replied. “There is a need for finality here.”
When Zuckerman said point-of-sale warnings are more effective than public information messages, Callahan retorted, “Well, of course it is more effective to compel speech that is what you want to say.”
Zuckerman noted the state requires a warning when a business cannot prove their product contains less of a Proposition 65-listed chemical than is considered safe. She said that makes the warning valid, and the matter should be decided on remand.
The panel did not indicate when it will rule.
In an emailed statement, a Bayer spokesperson doubled down on the company's argument that the EPA has repeatedly found glyphosate is safe to use and noted the agency's counterpart in the European Union has found the same.
“The company believes the Ninth Circuit should reaffirm the district court’s finding that California’s latest Proposition 65 safe harbor warning is not materially different from its four previous warning proposals and continues to violate the First Amendment," the company said.
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