US court rules on glyphosate labelling, by Jairo Andrade Junior, C&J Consulting, Chemical Engineer, 2018-05-26

The requirement on a manufacturer to label a product as a carcinogen violates the company's free speech rights if the statement is not clearly true, a US federal court judge has ruled.

The ruling temporarily blocks California from requiring labelling of products containing the herbicide glyphosate.

And, if the interpretation sticks, the state could be forced to defend the scientific basis underlying the listing of chemicals under Proposition 65, rather than simply accepting the findings of any one authoritative body referenced in the law.

The American Chemistry Council (ACC) President said that he hopes this ruling will lead to further examination of how out of hand California's Proposition 65 law has become and constructive reforms to this problematic law.

Proposition 65 requires that employees and consumers be warned when they are exposed to a chemical listed as known to cause cancer or reproductive harm.

The July 2017 decision by the Office of Environmental Health Assessment (OEHHA) to list glyphosate is based on an International Agency for Research on Cancer (IARC) finding that it is probably carcinogenic to humans.

The agricultural industry groups brought the suit back in January 2016, when OEHHA first announced its intention to list glyphosate. They made multiple legal arguments, but the February 2018 decision turns on the argument that requiring the Proposition 65 label violates free speech rights under the US Constitution.

A January 2017 lower court ruling that favored OEHHA did not consider the free speech argument on the grounds that there can be no violation until the labelling mandate goes into effect, as it is scheduled to do in July 2018.

A District Judge applied standards set by the US Supreme Court in another case involving government-mandated commercial speech. The high court ruled that businesses could be required to disclose purely factual and uncontroversial information about products, as long as the requirements are reasonably related to a substantial government interest.

The problem with the Prop 65 mandate is that the statement that glyphosate is carcinogenic is not uncontroversial true, said a District Judge. He found industry's argument persuasive that other regulatory bodies, including the US EPA, have decided glyphosate is not hazardous at current levels of exposure. 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, completed a District Judge.

The ruling is not a final decision in the lawsuit and does not require OEHHA to remove glyphosate from the Proposition 65 list, though it halts the labelling mandate while the case proceeds. The OEHHA said that it is pleased that the listing of glyphosate remains in effect, and we believe our actions were lawful. The agency had argued that the labelling mandate would not harm undustry because it expects to finalize before the July effective date a regulation establishing a safe harbor level of glyphosate below which a product would not have to carry a warning.

The District Judge agreed with industry that this does not sufficiently mitigate the impact of having to pay for testing and defend against private actions under Proposition 65, which are expensive even if they have no foundation.

IARC’s findings on glyphosate have been the central point of contention in recent attacks on its procedures in the US Congress. The ACC launched its campaign to alter IARC’s practices more than a year ago but stepped it up in January 2018 with the formation of the Campaign for Accuracy in Public Health Research Coalition.