Lawsuits continue around the country as to whether glyphosate is a carcinogen and whether plaintiffs suffering from various forms of cancer can sue — and prevail — against the manufacturers of glyphosate. In this article, we discuss recent developments with respect to California’s efforts to list glyphosate as a carcinogen and to require warning labels on products containing glyphosate.
Kennesaw Product Liability Litigators — Background on Glyphosate
Glyphosate is the ingredient in a widely-used herbicide called “Roundup” manufactured by the Monsanto Corporation and others (Monsanto’s patent expired in the 1990s and other herbicides containing glyphosate are now produced and sold by other companies). Roundup was first introduced for use in the 1970s. Today, more than 80 percent of US farms use some form of Roundup. Glyphosate kills weeds by being absorbed into the structure of the plant and root system and blocking certain enzymes. But because the chemical is sprayed on all the plants — including the plants destined for American dining tables — glyphosate can be found into many popular foods like “Cheerios,” a cereal made by General Mills. Because glyphosate is absorbed by the plant fiber, the chemical cannot be washed off. Glyphosate has been linked with many cancers, most closely with non-Hodgkin’s lymphoma.
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Kennesaw Product Liability Litigators — California Lists Glyphosate as a Carcinogen
In 2015, the International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic” to humans based on evidence that it caused cancer in experimental animals and in humans. See brief summary here.
Based on the IARC report and other studies showing a cancer risk associated with glyphosate, in 2015, the State of California began the process of listing glyphosate as probably carcinogenic under various California health laws and regulations. If listed, the California statute (i) prohibits discharge of the chemicals into sources of drinking water and (ii) requires rigorous warning labels. You might have seen the warning of various products. The typical warning language is: CHEMICAL “… is known to the state of California to cause cancer and/or reproductive toxicity.” Failure to comply with the warning requirements can result in penalties up to $2,500 per day for each failure, enforcement actions by the California Attorney General and lawsuits by private citizens who may recover attorney’s fees. See Cal. Health & Safety Code § 25249.7; Cal. Code Regs. Tit. 11 § 3201.
Pursuant to the law and promulgated regulations, in November 2015, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a Notice of Intent to List Glyphosate on the list of known carcinogens. Glyphosate was thereafter listed on July 7, 2017 with the attendant warning requirement to have taken effect on July 7, 2018.
The listing of glyphosate as a carcinogen spawned two lawsuits of note.
In 2017, various plaintiffs filed suit in Federal Court making various challenges to the listing and to the warning requirements. The plaintiffs were partially successful, but only with respect to the warnings. Since the listing itself was not struck down, glyphosate is still subject to the prohibition against discharge-into-sources-of-drinking water. With respect to the warning requirement, in February 2018, a federal court issued a temporary injunction prohibiting California from enforcing the warning requirement as a violation of the manufacturers’ free speech. The court held the warning requirements to be government-compelled-commercial speech that violated the First Amendment. See National Association of Wheat Growers v. Zeise, Civ. No. 2:17-2401 WBS EFB (US Dist. Court, ED California February 26, 2018).
In general, the government can require businesses to list information on products if the information is “purely factual and uncontroversial information” and as long as the “disclosure requirements are reasonably related” to a substantial government interest and are neither “unjustified [n]or unduly burdensome.” See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). In National Assoc. of Wheat Growers, the court held that California’s warning requirement did not meet the Zauderer standard. Issues with respect to glyphosate are not uncontroversial. The court issued a temporary injunction prohibiting enforcement of the warning requirement. Of note, however, the court did not enjoin the State from listing glyphosate as a chemical known to the State of California to cause cancer.
In the other case, Monsanto and the other manufacturers sued California in state court arguing, essentially, that California’s statute authorizing such listings was improper for various reasons and that California could not list glyphosate on the basis of a study done by a foreign, non-USA entity. The IARC is located in France and the studies it conducted were conducted mostly in Europe. As Monsanto and the other plaintiffs phrased it, “…. it is improper for a foreign entity, unaccountable to the citizens of California, to determine what chemicals are known to the state to cause cancer.” See Monsanto Company v. OEHHA, Case No. No. F075362, 22 Cal. App. 5th 534 (Cal. Court of Appeals 5th Dist. April 19, 2018). The trial court rejected all claims and the California Court of Appeals affirmed.
The Court of Appeals held that government regulators could rely on research and scientific findings from other countries. Any challenge to scientific findings had to be based on the science and methodology, not the nation of origin.
Monsanto also claimed that the listing was done in violation of the non-delegation provision of the California Constitution. Under that provision, the California legislature is prohibited from delegating to others — such as a state agency — the power to enact laws. However, the court rejected this argument holding that the law was properly enacted — via a ballot initiative — and that, as long as the statute provides proper guidelines and standards, there is nothing improper about delegating to a state health agency the responsibility for identifying the specific chemicals that would be subject to the law. Based on a review of the statutory scheme, the court held there to be built-in safeguards that provided adequate protection against potentially arbitrary or abusive determinations. The court rejected all the other arguments made by the plaintiffs.
In summary, barring pending appeals, glyphosate is now listed as a chemical “known to the state of California to cause cancer.” Glyphosate is thereby subject to regulation with respect to discharge into California drinking water, but enforcement of the warning requirement has been enjoined as improper government-compelled commercial speech.
Georgia Product Liability Litigators: Contact the Roger Ghai Law Offices
For more information, contact the Kennesaw medical device malpractice attorneys at the Roger Ghai Law Offices Our attorneys can help if you — or a loved one — has been diagnosed with non-Hodgkin’s lymphoma or other cancers which might be connected to exposure to Roundup or other glyphosate-containing products. We are experienced and proven product liability litigators. We provide legal services for the residents of Cobb County including the communities of Kennesaw, Acworth, Marietta and the surrounding areas. Click here to schedule your consultation.