A label required by the state of California warning of glyphosate’s potential as a human carcinogen is unconstitutional, the 9th Circuit Court of Appeals concluded in a decision that could aid Bayer in its ongoing legal battle over Roundup.
The warning, mandated by the state’s Proposition 65, is not sufficiently “narrowly drawn” to advance the state’s “interest in protecting consumers from carcinogens,” the court said in a 2-1 decision that affirmed a lower-court ruling finding the warning violated the plaintiffs’ First Amendment right to be free from compelled speech.
A coalition comprising mostly commodity groups had challenged the warning label, which cited the International Agency for Research on Cancer’s conclusion that glyphosate, the active ingredient in Roundup, probably causes cancer in humans.
Members of the National Association of Wheat Growers “knew we had a strong case, and the decisions were based on the facts and science surrounding the safety of the product,” NAWG President and Oregon wheat farmer Brent Cheyne said in a release.
“NAWG has been engaged in this legal battle as lead plaintiff challenging the California requirement for six years,” he said. “California’s Proposition 65 requirement threatened the use of glyphosate by requiring false and misleading labels on products that may contain glyphosate. We are pleased to see this action taken today by the court.”
Bayer said it is “pleased with the 9th Circuit’s ruling rejecting all of the state’s alternative warning language and upholding the permanent injunction” against the use of the language.
“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,” Bayer said.
“California has less burdensome ways to convey its message than to compel plaintiffs to convey it for them,” the two-judge majority said.
Following the 2020 district court decision that found the warning label unconstitutional, the state’s Office of Environmental Health Hazard Assessment came up with alternatives.
But the final warning OEHHA came up with “still conveys the overall message that glyphosate is unsafe which is, at best, disputed,” Circuit Judge Consuelo Callahan said in the opinion. That warning cites the IARC finding but also mentions that EPA has come to a different conclusion.
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EPA has concluded multiple times that glyphosate is not likely to cause cancer in humans.
In addition to NAWG, plaintiffs in the case include the Agribusiness Association of Iowa, the Agricultural Retailers Association, Associated Industries of Missouri, Iowa Soybean Association, Missouri Chamber of Commerce and Industry, CropLife America, Missouri Farm Bureau, National Corn Growers Association, North Dakota Grain Growers Association, South Dakota Agri-Business Association and United States Durum Growers Association.
Dissenting, Circuit Judge Mary Schroeder said the court “should, at the very least, remand [California’s new] warning to the district court to consider its sufficiency.”
The OEHHA warning “consists of five factually accurate sentences informing users that the product can expose them to a substance the IARC has determined probably causes cancer,” Schroeder wrote. “It further advises that the EPA and others have concluded the substance probably does not cause cancer and then directs the reader to an informational website. The warning fulfills the requirements of Prop 65, the validity of which is not questioned.”
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