Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

Monsanto Company and Industry Associations filed suit against California State Officials in the Eastern District of California on November 15, 2017. The lawsuit comes after California added glyphosate to its list of cancer-causing chemicals and announced it will require products containing glyphosate to carry warning labels by July 2018. Glyphosate is the main ingredient in Monsanto Company (hereinafter “Monsanto”)’s popular Roundup herbicide.

Parties to the suit include the following organizations: the National Association of Wheat Growers, the National Corn Growers Association, The United States Durum Growers Association, the Western Plant Health Association, Missouri Farm Bureau, the Iowa Soy Bean Association, the South Dakota Agri-Business Association, the North Dakota Grain Growers Association, the Missouri Chamber of Commerce and Industry, Monsanto Company (hereinafter “Monsanto”), the Associated Industries of Missouri, and the Agribusiness Association of Iowa (hereinafter “plaintiffs”). Plaintiffs filed suit against the Director of the California Office of Environmental Health Hazard Assessment (OEHHA) and the Attorney General for the State of California.

Glyphosate was first registered as a herbicide in the United States in 1974 and has been used by farmers for more than 40 years. The Environmental Protection Agency (EPA) reaffirmed its conclusion that “research does not provide evidence to show that glyphosate causes cancer” in 2014. However, the International Agency for Research on Cancer (IRAC) released an assessment that glyphosate is “probably carcinogenic to humans” in 2015.

Under California Law, namely the Safe Drinking Water and Toxic Enforcement Act of 1986 (hereinafter “Proposition 65”), businesses are prohibited from exposing state residents to chemicals known to the State to cause cancer without providing required warnings. OEHHA is tasked with maintaining a list of these chemicals. Glyphosate was added to this list on July 7, 2017 based on IRAC’s research. In criticizing the move, plaintiffs point to decades of research reflecting the absence of evidence to support glyphosate’s danger to humans.

Plaintiffs first claim the State’s requirement for warning labels on products treated with glyphosate violates the First Amendment of the United States Constitution, amounting to unconstitutional compelled commercial speech which will mislead consumers with the false information that products containing glyphosate are dangerous to their health. Further, plaintiffs claim the State’s action is in violation of the Federal Food, Drug, and Cosmetic Act (FFDC), which requires accurate food labeling and prohibits the misbranding of a food product where “its labeling is false or misleading.” See 21 U.S.C. § 343(a).  Finally, Plaintiffs claim the labeling requirement is a violation of Due Process.

Plaintiffs ask the Court to declare that the listing of glyphosate under Proposition 65 and requiring warning labels for products containing glyphosate would violate the First Amendment, federal labeling law, and the Due Process Clause. Plaintiffs ask the Court for injunctive relief, as well as costs and attorney fees.