California Attorney General, Xavier Becerra, filed his opening brief in the Ninth Circuit Court of Appeals lawsuit arguing in the 95-page filing that warnings for Glyphosate, which is the active ingredient in Monsanto’s Roundup herbicide, should be required in the state.
Beccera argued that as Californians “voted overwhelmingly” for Proposition 65 which requires warnings from businesses when products contain carcinogens, there should be a warning for glyphosate. In September, Becerra appealed the June decision in the Eastern District of California which determined that glyphosate did not need to be included on the list of chemicals required to have a warning under the Proposition.
The judge overseeing the District Court lawsuit decided that there was not sufficient evidence that glyphosate causes cancer to require the warning. Despite this purported lack of evidence, Monsanto’s parent company, Bayer, has agreed to pay significant amounts to settle hundreds of lawsuits claiming that individuals were harmed or developed cancer through contact with Roundup.
Becerra cited that the International Agency for Research determined that glyphosate was a carcinogen in 2015, and Proposition 65 requires warnings for chemicals determined to be carcinogens by the agency. Glyphosate was listed by California’s Office of Environmental Health Hazard Assessment in 2017 which was upheld after a 2018 court challenge.
The plaintiffs in the lawsuit include Monsanto and agricultural associations, including the National Association of Wheat Growers, CropLife America, and agriculture organizations for various states. These parties cited studies, including one from the Environmental Protection Agency, that did not conclude glyphosate was a carcinogen and claimed that they had a first amendment right to not include the warning.
Becerra refuted their First Amendment claims, arguing that “the purpose of First Amendment protection for commercial speech is to ensure that consumers have information to enable informed decisions in the marketplace,” and that including a warning for glyphosate would give the consumers more accurate information. The brief explained that under Proposition 65 specific wording is not required, but the language does have to say that the product is “known to the state to cause cancer” and be clear and reasonable.
Becerra asked the court to reverse and vacate the district court’s order.
Many of the plaintiffs are represented by Husch Blackwell. Of the remaining plaintiffs, the Western Plant Health Association is represented by Kahn, Soares & Conway, the Agricultural Retailers Association represents itself, and Monsanto is represented by Husch Blackwell, Latham & Watkins, and Arnold & Porter.
