Monday, September 20, 2021

California farm groups back court ruling on glyphosate labels

• By Ching Lee •

filling a sprayer
Photo courtesy NRCS

Saying that a mandatory cancer warning for the herbicide glyphosate would undermine its important agricultural uses and community benefits, the California Farm Bureau has joined other farm groups to support a California court decision that blocks the state from requiring cancer warning labels on the product due to violations of the First Amendment.

Farm Bureau, along with the California Cotton Ginners and Growers Association, Western Agricultural Processors Association, California Fresh Fruit Association and California Citrus Mutual, filed a “friend of the court” brief in late May, telling the 9th U.S. Circuit Court of Appeals it should uphold a lower court ruling. The lower court ruled that the state’s warning requirement violates the First Amendment because it compels governmental speech that is false, misleading and controversial.

In 2017, California listed glyphosate, the active ingredient in the herbicide Roundup and similar products, under Proposition 65 as a chemical known to the state to cause cancer. As a result of the listing, manufacturers of products containing glyphosate sold in California would be required to place a cancer warning label on their products.

The state requirement was based on findings by the International Agency for Research on Cancer, which in 2015 classified glyphosate as “probably carcinogenic,” based on animal studies and “limited evidence” that it could cause cancer in humans.

A coalition of trade groups and farm organizations sued the state. The U.S. District Court for the Eastern District of California ruled in favor of the coalition last June, permanently prohibiting the state from enforcing the Proposition 65 warning requirements for glyphosate-based products, saying the requirements violate the First Amendment. The state appealed the decision, and the case is now before the 9th Circuit.

California Farm Bureau Senior Counsel Kari Fisher said Farm Bureau became involved in the case because the organization wants to protect safe and efficient use of crop-protection tools. She said Proposition 65 warnings that glyphosate is cancerous could easily lead to lawsuits from so-called “bounty hunter” plaintiffs, even if they have not been injured from an alleged violation.

Such “bounty hunter” suits, Fisher said, would require farmers to spend significant time and money to respond to them, despite a “safe harbor” provision in the law that’s meant to provide protection from frivolous lawsuits and reduce regulatory liability.

“It’s such a burden for someone to have to defend, even if their product doesn’t have the glyphosate risk,” Fisher said.

In their brief, Farm Bureau and the other agricultural groups did not revisit arguments about the First Amendment implications of a Proposition 65 warning requirement for glyphosate. Instead, Fisher said, they provided “further insight into the relevant science” and explained “the broader impacts of glyphosate warnings on the agricultural industry.”

The groups pointed to other regulatory agencies, including the U.S. Environmental Protection Agency, that have been critical of the IARC findings, with some of them concluding no warnings are required because glyphosate is not likely to be carcinogenic to humans.

The state’s own Office of Environmental Health Hazard Assessment, plus the European Food Safety Authority, Food and Agriculture Organization of the United Nations, World Health Organization, European Chemicals Agency and regulatory agencies of Australia, Canada and New Zealand, have all determined glyphosate does not cause cancer, the groups said.

Because only the IARC, which does not have regulatory power, has concluded that glyphosate probably is capable of causing cancer at unspecified exposure levels, requiring companies to place a Proposition 65 warning on their products can be viewed as unconstitutional compelled speech, Fisher said, because the science surrounding glyphosate’s alleged risk is disputed.

Farm Bureau and the other groups noted the various agricultural uses of glyphosate to combat noxious and invasive weeds to protect human health and safety, the environment and the state’s agricultural economy.

Because the product can be used with a broad spectrum of crops, glyphosate “is virtually indispensable to California farmers and ranchers,” they said.

The groups emphasized the environmental benefits of glyphosate, which can suppress weeds that are fire fuel and that use water resources during a drought year. They called glyphosate “an environmentally benign herbicide,” because its chemical structure allows it to bind to the soil with little movement in groundwater and no impact on the atmosphere. Use of glyphosate, they said, also allows farmers to adopt sustainable practices such as no-till or reduced-till methods.

“The availability of glyphosate and glyphosate-resistant crops have not only allowed farmers and ranchers to improve yields and profitability, but also better protect the environment,” the brief said.

Ching Lee is an assistant editor of Ag Alert. She may be contacted at clee@cfbf.com. This article originally appeared in the California Farm Bureau’s Ag Alert newspaper.

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