The Ninth Circuit received three friend of the court briefs last week in support of the State of California’s bid to overturn a trial court decision permitting Monsanto and other agricultural firms to exclude a cancer warning on glyphosate-based products like Roundup. The amici, UC Berkeley Center for Consumer Law & Economic Justice, the National Black Farmers Association, and a coalition of environmental, labor, and health rights groups, threw their support behind California Attorney General Xavier Becerra, whose office is defending the suit.
The plaintiff-appellees challenged the constitutionality of California’s Proposition 65, a long-standing law requiring companies to disclose the presence of carcinogenic chemicals. Monsanto contended that requiring it to warn Roundup users that exposure to glyphosate may cause cancer violated the First Amendment to the U.S. Constitution. The district court agreed, citing insufficient evidence connecting glyphosate with cancer to merit the warning. The court further concluded that requiring Monsanto to do so would undermine the state’s interest in accurately informing its citizens about health risks.
California appealed, and filed its opening brief last week. Amicus UC Berkeley argued that California juries have returned multi-million-dollar plaintiffs’ verdicts to farmworkers and groundskeepers who developed non-Hodgkins lymphoma (NHL) as a result of Roundup exposure, yet Monsanto still, and untenably, protests placing a cancer warning label on its products.
Further, and contrary to Monsanto’s First Amendment argument, UC Berkeley claims that Proposition 65 is lawful. The filing explains that a law requiring “accurate factual disclosure that is reasonably related to a substantial government interest and neither unjustified nor unduly burdensome,” is within California’s right under circuit precedent.
In its brief, the National Black Farmers Association argues that both California and voter-enacted Proposition 65 play a crucial role in warning the public that Roundup causes NHL. The agribusiness’ position that “the First Amendment here requires reducing access to truthful information is wrong and should be rejected,” the association contends.
Among other arguments, the coalition, including the National Resource Defense Counsel and the Center for Food Safety, asserts that accepting the appellees’ theory “would magnify incentives for industry to sponsor contrary studies and generate doubt among regulatory bodies in order to undercut regulations.” It would also allegedly permit judicial scrutiny of regulations any time a regulated entity could produce a dissenting scientific view. Such a result, the coalition claims, is neither wise nor constitutionally required.
Briefing is set to conclude by the end of June.
The UC Berkeley Center for Consumer Law & Economic Justice is represented by itself and an assistant professor of law at UC Berkeley, the National Black Farmers Association by NS PR Law Services, LLC, Goldstein & Russell, P.C., Napoli Shkolnik PLLC, and Ben Crump Law, and the coalition of environmental, labor, and health rights groups by the Natural Resources Defense Council.