Plaintiffs Fight 9th Circuit Appeal of Decision to Not Require California Cancer Warning for Glyphosate

In a Ninth Circuit brief filed on Wednesday, the National Association of Wheat Growers (NAWG), Monsanto, and other groups and companies argued that glyphosate, the active ingredient in Monsanto’s Roundup and other herbicides, should not be considered a carcinogen according to California’s Proposition 65, which would require a notice that it could cause cancer to be disclosed on each glyphosate product.

The defendant and appellant, Xavier Becerra, filed a brief in the matter in February, shortly before a brief was filed by various amicus curiae parties in favor of the defendant. (At the time of filing, Becerra served as California’s attorney general; after being appointed to the Biden Administration, Rob Bonta succeeded him in his position.) Becerra argued that because Californians were overwhelmingly in favor of Proposition 65, and some studies have shown that glyphosate is likely carcinogenic, it should be included. Becerra argued against First Amendment claims from the plaintiffs by arguing that under Proposition 65 specific language for the warning is not required.

Becerra appealed the Eastern District of California decision which ruled that glyphosate did not need to be included in Proposition 65 in September, ruling that there was not enough evidence to prove that it causes cancer. The judge said that because the label could be misleading or false, it should not be included in the substances in Proposition 65.

In the present brief, the plaintiffs argued that glyphosate is approved by the federal government for use on crops, and claimed that the international consensus of scientists does not hold that glyphosate causes cancer.  They alleged that as glyphosate is the most commonly used herbicide, it has been thoroughly studied and been examined by regulators for decades, and claimed that many entities, including the United States and California, have determined it does not cause cancer. The International Agency for Research on Cancer, however, did determine that at “unspecified exposure levels” glyphosate was probably able to cause cancer, which led to California requiring warnings on the product under Proposition 65.

Addressing California’s argument against their First Amendment claims, the plaintiffs alleged that laws that compel speech should be scrutinized and are “presumptively unconstitutional,” unless the disclosure is not controversial, like calorie counts or ingredient lists.

“The problem here is that the compelled Proposition 65 warning would convey the message that it is an established fact that glyphosate causes cancer when, in actuality, the vast weight of scientific authority is to the contrary,” the plaintiffs claimed.

The brief called the attorney general’s suggested “alternative warning,” which would note that it was found to cause cancer but that the EPA disagreed, a red herring, and alleged that it still violates the first amendment by requiring the company to include a warning that is potentially false and that the qualifying language is “irrelevant to the constitutional analysis and noncompliant with Proposition 65.” 

Many 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 California’s Department of Justice. 

In addition to this lawsuit, Monsanto is involved in hundreds of Roundup-based lawsuits alleging that the chemical caused cancer, specifically non-Hodgkin’s lymphoma, to individuals who used it frequently or who had extended exposure. The company has settled many of these claims.