Updated with comment from NCGA.
By Joel Rosenblatt
Bayer AG’s Roundup won’t require a label in California warning consumers that a chemical in the weed killer is known to cause cancer.
A federal judge in Sacramento on Monday ruled for Bayer and blocked the state from requiring that any company selling a glyphosate-based produce place a “clear and reasonable warning” on it.
California’s Office of Environmental Health Hazard Assessment listed glyphosate in July 2017 as a chemical known to the state to cause cancer. Bayer’s Monsanto unit has aggressively fought California’s move to add glyphosate to a list created by a voter-approved ballot initiative, Proposition 65, that requires explicit warnings for consumer products containing substances that may cause cancer or birth defects.
U.S. District Judge William B. Shubb on Monday made final his 2018 preliminary ruling that requiring Bayer to provide the warning on Roundup is a violation of its free-speech protections. The International Agency for the Research on Cancer, part of the World Health Organization, has found glyphosate is likely to cause cancer but Shubb said others, including the U.S. Environmental Protection Agency, found otherwise.
“Notwithstanding the IARC’s determination that glyphosate is a ‘probable carcinogen,’ the statement that glyphosate is ‘known to the state of California to cause cancer’ is misleading,” the judge wrote. “Every regulator of which the court is aware, with the sole exception of the IARC, has found that glyphosate does not cause cancer or that there is insufficient evidence to show that it does.”
A coalition of farming groups, including the National Corn Growers Association, National Association of Wheat Grower and Agricultural Retailers Association, joined Bayer in the lawsuit opposing the labeling.
“This is a very important ruling for California agriculture and for science,” Bayer said in an emailed statement. The judge concluded “the evidence does not support a cancer-warning requirement for glyphosate-based products, which farmers all over the world depend on to control weeds, practice sustainable farming, and bring their products to market efficiently,” it said.
Shubb also found that a warning label would expose Bayer to lawsuits in which it has the burden of showing that in using Roundup, exposure to glyphosate falls below the “no significant risk level” in Prop. 65 enforcement actions.
“Facing enforcement actions, or even the possible risk of enforcement actions, are cognizable injuries, even if a business can ultimately prove that its product is not a cancer risk,” Shubb wrote.
"The U.S. Environmental Protection Agency and numerous other regulatory bodies around the world have not found glyphosate to be carcinogenic, as was pointed out by the federal judge ruling that the product cannot be labeled as such in California. We appreciate and respect the science-based decision making applied in this case," said National Corn Growers Association President Kevin Ross in a media statement.
The case is National Association of Wheat Growers v. Zeise, 17-2401, U.S. District Court, Eastern District of California (Sacramento).