Reuters — A divided U.S. federal appeals court on Tuesday said California cannot require businesses to warn consumers about the potential dangers of glyphosate, an ingredient in Roundup herbicide that has been linked to cancer.
Upholding a permanent injunction, the Ninth U.S. Circuit Court of Appeals in San Francisco found it unconstitutional to force Bayer’s Monsanto unit, which makes Roundup, and other agricultural businesses to provide California’s proposed carcinogen warnings under a state law known as Proposition 65.
Writing for a 2-1 majority, Circuit Judge Consuelo Callahan said making the producers a “billboard” for California’s “at best, disputed” message that glyphosate is unsafe violated their First Amendment commercial speech rights, despite the state’s substantial interest in its citizens’ health.
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“Compelling sellers to warn consumers of a potential ‘risk’ never confirmed by any regulatory body — or of a hazard not ‘known’ to more than a small subset of the scientific community — does not directly advance that interest,” she wrote.
Bayer called the decision “a strong blow against compelled warnings for Roundup that are not supported by science and will be important in the company’s ongoing personal injury litigation.”
California’s original warnings linked glyphosate to cancer. A revised warning proposed last year referred to findings in 2015 by the International Agency for Research on Cancer, the France-based specialized cancer agency of the World Health Organization, that glyphosate was “probably carcinogenic” to humans.
Callahan rejected all the warnings, saying they required Bayer and other objectors to convey a “controversial, fiercely contested message that they fundamentally disagree with.”
Tuesday’s decision upheld a June 2020 injunction issued by U.S. District Judge William Shubb in Sacramento.
“We are disappointed,” the office of California Attorney General Rob Bonta, which had appealed the injunction, said in an email. It declined to address whether it planned another appeal.
Lawyers for 13 agriculture and business trade groups that also opposed the warnings did not immediately respond to requests for comment.
Bayer has faced extensive litigation over Roundup, including three losses in trials last month, since it bought Monsanto for US$63 billion in 2018.
It settled most Roundup claims for US$10.9 billion in 2020, but by early this year still faced about 45,000 claims.
— Jonathan Stempel is a Reuters correspondent covering U.S. federal and state courts from New York.
