Published by Somach Simmons & Dunn
Last week, Monsanto Company, the leading manufacturer of the herbicide glyphosate, along with eleven state and national agricultural industry groups (collectively, “Plaintiffs”) filed suit against the State of California challenging the listing of glyphosate under Proposition 65 (Prop 65). The complaint, National Association of Wheat Growers v. Zeise, No. 2:17 at 01224 (E.D. Cal. filed Nov. 15, 2017), seeks declaratory relief under three claims: violation of the First Amendment to the United States Constitution; violation of the Supremacy Clause; and violation of the Due Process of the Fourteenth Amendment to the United States Constitution.
Renowned for its weed abatement, glyphosate has been marketed nationally and internationally since the mid 1970’s. It is widely used in the cultivation of many crops worldwide, from staple crops such as corn, wheat, oats, and soybeans to more exotic crops such as almonds, citrus, and even cotton. It is against this backdrop of the chemical’s pervasive use that Plaintiffs filed their claims.
The Office of Environmental Health Hazard Assessment (OEHHA), a California State Agency, is charged with determining which chemicals, if any, should be listed under Prop 65. A chemical can be listed based upon one of the following: (1) one of the state’s qualified experts opines the chemical has been shown to cause cancer or reproductive toxicity through valid testing based upon generally accepted scientific principles; (2) an authoritative body of experts formally identifies the chemical as one causing cancer or reproductive toxicity; or (3) a state or federal agency requires the chemical to be labeled or identified as causing cancer or reproductive toxicity. As of November 10, 2017, the Prop 65 chemical list included over 700 chemicals.
Listing a chemical under Prop 65 necessitates the placement of clear and reasonable warning labels on all products containing the chemical. The ramifications for not complying with Prop 65’s labeling requirements are onerous; violators risk a civil penalty of up to $2,500 per day, per violation. However, a court will evaluate a number of factors before imposing a civil penalty. Such factors include, but are not limited to, the following: the nature and extent of the violation; the severity of the violation; the economic effect of the civil penalty; and whether any good faith attempts at compliance were made.
Plaintiffs’ lawsuit is premised upon both the manner in which OEHHA listed glyphosate as a chemical “known to the State to cause cancer” under Prop 65 and the effect of the chemical’s listing. In 2015, the International Agency for Research on Cancer (IARC), a specialized cancer agency of the World Health Organization, published a monograph evaluating the carcinogenic risks of glyphosate in humans. This monograph concluded glyphosate is “probably carcinogenic to humans.” Plaintiffs assert the State’s listing of glyphosate was based exclusively on this 2015 monograph, and, accordingly, their procedural due process rights were violated because no attempt was made to reconcile the IARC’s findings with the mass of contradictory conclusions from other studies that have evaluated glyphosate.
Substantively, Plaintiffs allege that because glyphosate does not cause cancer, the Prop 65 labeling requirements will force them to engage speech that is both false and misleading. As a result, such government-compelled speech is in contravention of the First Amendment’s protections. Plaintiffs also assert the labeling requirements are “preempted” by federal law (a doctrine based upon the Supremacy Clause), and, therefore, are without legal effect as applied to them. Specifically, Plaintiffs allege that compliance with Prop 65’s labeling requirements would render the labeled products “misbranded” and/or “misleading” in direct violation of the Federal Food, Drug, and Cosmetic Act.
In addition to the foregoing claims, Plaintiffs also seek injunctive relief in the form of both preliminary and permanent injunctions to prohibit the State from enforcing, or threatening to enforce, the Prop 65 regulations on glyphosate-containing-products, as well as attorneys’ fees and costs.
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