In 1986, California’s voters approved a ballot initiative with admirable aspirations. Proposition 65 requires businesses to display clear warnings about the presence of any chemicals that could cause cancer, birth defects or reproductive harm. Although the law initially raised awareness about potential hazards, it has steered off course in recent years. Now, California residents are inundated with warnings on everything from coffee to parking garages.
Although “over-labeling” tends to render warning labels meaningless, California businesses face a strong incentive to err on the side of caution. This is because California law allows plaintiffs’ attorneys to file lawsuits against businesses that fail to provide warnings that comply with Proposition 65. To avoid being the subject of a lawsuit, many businesses provide warning labels if there is even a small chance a product might contain a chemical that is required to be labeled.
Enter glyphosate. Glyphosate has been a major factor in the rise of genetically engineered crops and the focus of much scrutiny. While hundreds of studies have reached the conclusion glyphosate does not pose a substantial risk to human health, the International Agency for Research on Cancer (IARC) concluded glyphosate is a “probable carcinogen” in a 2015 report. However, the report, already an outlier, was called into question because of claims of data manipulation and financial conflicts of interest.
Notwithstanding the deficiencies in the IARC report, California used the classification as a “probable carcinogen” to move forward with listing glyphosate as a carcinogen in 2017, which would trigger labeling requirements.
The food industry scrambled in the wake of the glyphosate listing. Due to its common use on staple crops, almost all processed food products pose a risk of containing traces of glyphosate. Food manufacturers would have to either seek alternative input sources or slap a warning label on their products. Many chose to avoid the label and sought out products that could be certified as raised without glyphosate.
Facing the prospect of losing a significant weed management tool, a coalition led by farmer groups and chemical manufacturers and retailers filed suit to contest California’s labeling requirement. Their lawsuit alleged the carcinogen warning violated the First Amendment because it would force manufacturers and retailers to spread “false, misleading and highly controversial information” about products containing traces of glyphosate. This lawsuit faces an uphill battle because there has never been an instance where a court has overturned a carcinogen listing.
So far, the courts have been on the side of the farmers. In February, a federal judge issued a preliminary injunction in favor of the farmers that stops California from enforcing a labeling requirement for glyphosate or products with traces of glyphosate. Under the First Amendment, the government can require products to bear warning labels if the information on the label is factual, not misleading or controversial. The judge held California’s labeling requirement for products containing glyphosate is unlawful “given the heavy weight of evidence [...] that glyphosate is not in fact known to cause cancer.”
We are not out of the woods yet. California can choose to appeal the court’s conclusion, which it likely will. However, it is refreshing to see a court take an honest and balanced approach when analyzing the prevailing science on an issue. It has (so far) helped many producers avoid a major headache and kept glyphosate in the arsenal of tools available to improve crop efficiency.
