Court Blocks California's Glyphosate Warning Rule

Introduction

A divided federal appeals court has ruled that California cannot mandate businesses to warn consumers about the potential dangers of glyphosate, an ingredient in the Roundup weedkiller linked to cancer.

The 9th U.S. Circuit Court of Appeals in San Francisco, upholding a permanent injunction, declared it unconstitutional to compel Bayer's Monsanto unit, the maker of Roundup, and other agricultural businesses to provide the proposed carcinogen warnings under California's Proposition 65.

In a 2-1 majority decision, the Circuit Judge stated that turning producers into a "billboard" for California's "at best, disputed" message on the alleged unsafety of glyphosate violated their First Amendment commercial speech rights, despite the state's significant interest in its citizens' health.

The judge argued that forcing sellers to warn consumers of a potential 'risk' not confirmed by any regulatory body or not 'known' to more than a small scientific subset does not directly serve the state's interest.

Bayer praised the decision as a "strong blow against compelled warnings for Roundup that are not supported by science" and deemed it crucial for the company's ongoing personal injury litigation.

Initially linking glyphosate to cancer, California's original warnings were revised last year, citing the International Agency for Research on Cancer's findings that glyphosate was "probably carcinogenic" to humans.

Rejecting all warnings, the judge noted that they required Bayer and other objectors to convey a "controversial, fiercely contested message that they fundamentally disagree with."

The ruling upheld a June 2020 injunction by a U.S. District Judge in California. The office of the California Attorney General expressed disappointment, declining to disclose plans for another appeal. Lawyers for 13 agriculture and business trade groups opposing the warnings did not immediately respond.

Bayer has faced extensive Roundup litigation, with three trial losses last month, since acquiring Monsanto for $63 billion in 2018. Although settling most Roundup claims for $10.9 billion in 2020, the company still faced about 45,000 claims by early this year.

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