Lawsuit Over California’s Proposition 65 To Be Held in Abeyance

California Attorney General Rob Bonta, who took over this case from former Attorney General Xavier Becerra, filed an unopened motion to hold a case in abeyance, which was granted on Wednesday by the Ninth Circuit Court of Appeals. The lawsuit is an ongoing case over California’s Proposition 65 and whether glyphosate, the active ingredient in Roundup and other herbicides, should be included on the state’s list of cancer-causing substances. 

Including the chemical on the list would allegedly violate the free speech of the plaintiffs, the National Association of Wheat Growers and Monsanto Inc. The plaintiffs have argued that being required to refer to glyphosate as a substance “known to cause cancer,” despite a scientific consensus against the claim, violates their First Amendment rights.

California’s Proposition 65, formally known as the Safe Drinking Water and Toxic Enforcement Act, has a requirement that businesses must provide a warning that certain products may expose them to chemicals that could cause cancer. The district court agreed that glyphosate should not be included, ordering an enjoinment “of any Proposition 65 warning requirement for glyphosate exposures on the ground that all such warnings would violate the First Amendment.”

Becerra argued that glyphosate should be on the list, and appealed the Eastern District of California decision that there was not enough evidence to place it on the list. 

After the district court’s ruling, the California Office of Environmental Health Hazard Assessment (OEHHA), announced that it will be presenting “specific warning language tailored to glyphosate that was not considered by the district court.” Attorney General Bonta argued that the case should be held in abeyance for 180 days to give time for OEHHA to conclude their rulemaking process to “best serve the interests of judicial economy and efficiency.” 

The Attorney General says that he and his office will “stand ready to provide supplemental briefing on the constitutionality of the final safe harbor warning language OEHHA adopts, or in the alternative, to request a remand to the district court so that it may consider the constitutionality of the new safe harbor warning in the first instance.”

The Court granted the motion to hold the appeal in abeyance for 180 days.

The majority of the plaintiffs are represented by Husch Blackwell, The Western Plant Health Association is represented by Kahn, Soares & Conway, the Agricultural Retailers Association is represented by Olsson Frank Weeda Terman Matz PC, and Monsanto is represented by Latham & Watkins and Arnold & Porter. The defendants are represented by the California Office of the Attorney General.