Business groups and major farming interests backed an order blocking enforcement of California’s rule requiring cancer labels on the herbicide glyphosate, which is found in the popular weedkiller Roundup, telling the Ninth Circuit the rule violates the First Amendment.

The U.S. Chamber of Commerce, California Farm Bureau Federation and others told the Ninth Circuit on Wednesday that it should uphold a lower court decision that blocked the enforcement of Proposition 65 warnings for glyphosate. The groups argue there isn’t enough evidence to show that the chemical causes cancer and that the state’s warning for glyphosate violates the First Amendment by imposing on companies a warning label that includes information they say is not true.

The Chamber and others want the Ninth Circuit to uphold a June decision by U.S. District Judge William B. Shubb that sided with a Bayer AG subsidiary and several farming associations. The judge said a prior finding by the International Agency for Research on Cancer that glyphosate is a “probable” human carcinogen is not enough to support the claim that glyphosate causes cancer. 

In 2017, the state had listed glyphosate as a known cancer-causing chemical under Proposition 65 in response to IARC’s finding, with the addition to take effect in July 2018, although a judge eventually halted it from being implemented. The listing prompted Monsanto and multiple farming associations to sue, demanding that it be removed from the Proposition 65 list. That list requires businesses to include cancer warning labels on products, or meet other requirements.

The Chamber says that it is not enough for companies to have the option to prove that their products include such a small amount of glyphosate that it falls below a so-called no significant risk level and would, therefore, not need to include a warning. But proving that can be extremely difficult, improperly imposing “asymmetric burdens” on companies.

The link between cancer and glyphosate was made by an “expert scientific agency” and its conclusions are of interest to the public. The warning the state has put forward is “detailed, purely factual and uncontroversial statement providing information about both IARC’s determination and EPA’s findings, a warning that is neither unjustified nor unduly burdensome,” according to California.

The Ninth Circuit dealt a setback to Monsanto recently when a panel upheld a $25 million judgment in the first bellwether trial in multidistrict litigation over claims that the company’s Roundup weedkiller causes cancer, saying failure-to-warn claims are not blocked by federal law.


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