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Lee N. Smith, Esq.
Coleman & Horowitt, LLP
Fresno, California

Although there is a recent State Appeals court case  that upholds the State’s ability to list Glyphosate as a Prop 65 chemical and would require labeling as such starting July 2018 ((5th Dist.) there is also a federal ruling on preliminary injunction that prohibits the enforcement of Prop 65 labeling for glyphosate.(CAED)

The State case (decided in April) involved whether the listing of the chemical on Prop 65 was proper. Monsanto, the manufacturer of glyphosate, sued the Office of Environmental Health Hazard Assessment (OEHHA) after it announced it planned to list glyphosate as a carcinogen under Prop. 65. The listing was made through Prop. 65's labor code listing mechanism, which requires OEHHA to list chemicals that the World Health Organization's International Agency for Research on Cancer (IARC) finds to be carcinogenic. In 2015, IARC concluded that glyphosate was a probable human carcinogen. Before the listing was finalized, Monsanto sued to block it. After a lower court granted OEHHA a motion to dismiss the case, the company appealed. While the appeal was pending, OEHHA listed glyphosate. The 5th District Court of Appeal (Fresno) rejected all of Monsanto's arguments, which center on the allegation which Prop. 65’s labor code listing mechanism violates the California and U.S. Constitutions because it improperly relies on the conclusions of a foreign body, in this case IARC, to make some listing decisions.

In the Federal case (Feb.2018)  the Court granted an preliminary injunction that prohibits the enforcement of Prop 65 on that July date until the Court resolves the issue in federal court. Judge Shubb  (Sacramento, Eastern District of Ca.) found merit in the plaintiffs' second ground for injunction; i.e., that forcing the plaintiffs to place a misleading label on their products violates the first amendment. The basis of the federal action is that the listing of glyphosate is not unequivocal and the argument is that:

It is a violation of the first amendment to require that a business to put a label on that is not 100% accurate.

On the evidence before the court, the required warning for glyphosate does not appear to be factually accurate and uncontroversial because it conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glyphosate causes cancer.

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It is inherently misleading for a warning to state that a chemical is known to the state of California to cause cancer based on the finding of one organization (which as noted above, only found that substance is probably carcinogenic), when apparently all other regulatory and governmental bodies have found the opposite, including the EPA, which is one of the bodies California law expressly relies on in determining whether a chemical causes cancer. The court expresses no opinion as to whether a statement that a chemical is known to cause cancer is factually accurate and uncontroversial where there is stronger evidence in support of the chemical’s carcinogenicity. However, here, given the heavy weight of evidence in the record that glyphosate is not in fact known to cause cancer, the required warning is factually inaccurate and controversial.

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Pending final resolution of this action, defendants, their agents and employees, all persons or entities in privity with them, and anyone acting in concert with them are hereby ENJOINED from enforcing as against plaintiffs, plaintiffs’ members, and all persons represented by plaintiffs, California Health & Safety Code § 25249.6’s requirement that any person in the course of doing business provide a clear and reasonable warning before exposing any individual to glyphosate.

OEHHA has requested the court amend its order granting a preliminary injunction and a hearing is set for Monday, July 2, 2018.

OEHHA is also in the process of reviewing a change to the specific language for the pesticide warning labels to make them consistent with federal pesticide  labelling requirements. See attached.

The agency would add new subsection (d) to section 25603 of its Article 6 Clear and Reasonable Warnings Regulation that would allow product manufacturers to use the word "attention" or "notice" instead of "warning" on their Prop. 65 labels."OEHHA believes that in these limited circumstances, the use of the alternative signal words … will bring attention to the warning without interfering with the U.S. EPA or DPR labeling requirements," according to the agency.(OEEHA pestlabel)