• Rounded Down: An Update on California Glyphosate Litigation
  • May 3, 2018
  • Last November, we brought your attention to litigation in federal court in California regarding the listing of glyphosate as a substance “known to the state to cause cancer.” Since then, there have been developments in both the originally reported federal court case and a state court case on the same subject.

    First, a refresher: glyphosate is a common pesticide sprayed on more than 200 types of crops across four million acres in California. Monsanto Company, the principal plaintiff in both cases, produces glyphosate in the form of Roundup. Globally, it’s available in hundreds of generic formulations from numerous companies, and accounts for 25 percent of all pesticide use worldwide. Glyphosate is a relatively simple molecule and breaks down easily. It works by targeting an enzyme found in plants, but not found in humans or animals.
    Since its introduction in 1974, glyphosate has been studied multiple times and by multiple groups to determine its potential as a carcinogen. Regulatory bodies reviewing these studies include the Environmental Protection Agency, the German Federal Institute for Risk Assessment, the European Food Safety Authority, the European Commission, and the Canadian Pest Management Regulatory Authority. Prior to 2015, these groups uniformly failed to identify glyphosate as carcinogenic. Notably, the California Office of Environmental Health Hazard Assessment (Office) reached the same conclusion twice, in 1997 and 2007.
    In 2015, the International Agency for Research on Cancer (Agency) identified glyphosate as “probably carcinogenic to humans.” The Agency relied on the same information used in prior studies, but reached the opposite conclusion. Once the Agency published its conclusion, California law required the Office to list glyphosate as a substance “known to the state to cause cancer.” This means in California, businesses will be prohibited from discharging glyphosate into drinking water, and they will have to provide a public warning on products that will expose humans to glyphosate.
    The ensuing legal challenges have not gone terribly well for Monsanto and the industry groups. In late February, the judge in the federal court suit denied their motion for a preliminary injunction to stop the listing, though he did grant an injunction against the warning requirement. The trial court in the state-court case ruled against Monsanto and the industry groups in early 2017, and on April 19, 2018 a California appellate court did the same. The state court case challenged the California law that requires the Office to list any substance identified as potentially carcinogenic to humans by the Agency. In a lengthy ruling, the appellate court held (among other things) that the law was not an unconstitutional delegation of rule making authority because the law relied on the Agency (among other non-state entities) only to identify facts, not to set fundamental policy. Moreover, the court found that there are adequate safeguards in place to direct the Office on how to apply the fundamental policy decided by the legislature.
    The legal battle is far from over — Monsanto and the industry groups can still appeal the state court ruling to the Supreme Court of California, and the injunction against the warning requirement from the federal court remains in place while that litigation is ongoing. We will keep you up to date on these important cases.