Glysophate, mostly used as a weed killer, was listed as a chemical known to the State of California to cause cancer in July of 2017. This followed the International Agency for Research on Cancer’s determination that Glysophate was “probably carcinogenic” in 2015. In 2018 a federal jury awarded hundreds of millions in damages to consumers stricken with cancer who used Glysophate branded as “RoundUp.” Nevertheless, in January of 2020 the Federal Environmental Protection Agency (“EPA”) determined that Glysophate was safe when used in compliance with its label and likely not a human carcinogen. In a suit brought against California’s attorney general, a Federal Court in the Eastern District of California agreed with a first amendment challenge to the Proposition 65 warning for Glysophate. The court in Nat’l Ass’n of Wheat Growers v. Becerra, 468 F. Supp. 3d 1247, 1266 (E.D. Cal. 2020) determined it was a violation of first amendment rights to require a warning when “the great weight of evidence” is that Glysophate is not a human carcinogen. The court entered a permanent injunction, prohibiting enforcement actions for a failure to warn of a glysophate exposure. OEHHA’s response to the trial court loss has been to issue proposed warning language that seeks to avoid forcing parties to provide what the court determined to be a false warning. The proposed warning language is:
Using this product can expose you to glyphosate. The International Agency for Research on Cancer classified glyphosate as probably carcinogenic to humans. Other authorities, including USEPA, have determined that glyphosate is unlikely to cause cancer, or that the evidence is inconclusive. A wide variety of factors affect your personal cancer risk, including the level and duration of exposure to the chemical. For more information, including ways to reduce your exposure, go to www.P65Warnings.ca.gov/glyphosate.”
Written comments are being accepted by OEHHA until October 9th on the proposed warning language. The injunction currently in effect would prevent enforcement of even the proposed warning language. The Court had refused to accept proposed alternative warning language from California, noting the proposed language would violate warning regulations then in effect. Issuing a new regulation providing for the specific warning language is an effort by California to avoid that issue. For the new warning language to go into effect, OEHHA would have to enact the regulation following the comment period and find success on appeal. Should the proposed regulation go into effect, it would be the first time OEHHA promulgated safe harbor warning language that gives space to both sides of a debate about a listed chemical.
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