Judicial Extortion in California

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The California office of Environmental Health Hazard Assessment (OEHHA) under what is called Proposition 65 “…must warn Californians about the presence of chemicals that are known to the state to cause cancer.”

In July, OEHHA issued an opinion declaring that glyphosate or Roundup was to be added to the list of chemicals which are “known” to California to cause cancer and thereby be subject to the requirements of Proposition 65.

OEHHA did not conduct any scientific review to conclude that glyphosate is carcinogenic. California relies on the International Agency for Research on Cancer (IARC) to support its decision. IARC’s conclusion “…is opposed by every global regulatory body that has examined the issue, including OEHHA itself.”(This article first ran in Farm Futures on November 28, 2017.)

Numerous farm organizations filed a lawsuit on Nov. 15, 2017, opposing OEHHA’s listing. (In January, 2016, farm groups and Monsanto sued California in state court and lost.)  In federal court farm groups and Monsanto argue the listing of glyphosate under Proposition 65 violates the First Amendment of the U.S. Constitution because such listing requires Monsanto and distributors of the product to make false and misleading statements about glyphosate. It is also argued that California’s warning requirement is preempted by other federal statutes and also violates the Due Process Clause of the Fourteenth Amendment.

The farm parties include the National Association of Wheat Growers, National Corn Growers Association, Durum Growers Association, Western Plant Health Association, Missouri Farm Bureau, Iowa Soybean Association and, of course, Monsanto.

The complaint filed by these groups ironically notes that OEHHA “…has concluded that glyphosate is non-carcinogenic.” In 1997 and 2007, according to the complaint, OEHHA reviewed several glyphosate studies and concluded “…that there was no evidence demonstrating that glyphosate causes cancer.” In fact, on June 1, 2007, OEHHA published a document declaring “Based on the weight of the evidence, glyphosate is judged unlikely to pose a cancer hazard to humans.”

Proposition 65 in California prohibits businesses from exposing California residents to cancer-causing substances without providing a warning. Consequently, OEHHA maintains a list of chemicals “known” to California officials to cause cancer. Because IARC listed glyphosate as a “probable carcinogen,” OEHHA believes that it must automatically list glyphosate to be carcinogenic. 

Proposition 65 is known in the legal profession as a “bounty hunter” regime. The complaint asserts “Wide-scale abuse of the Proposition 65 regime through ’strike suits’ by bounty hunters is broadly recognized.” The complaint further describes a long history of bounty hunter suits and the complaint asserts “A long history of these strike suits demonstrates what typically happens in practice: in face of this litigation threat, businesses are forced to simply acquiesce and post a warning, regardless of the fact those businesses know the warning is affirmatively false and misleading.”

In fact, it is noted in the complaint that Starbucks, Whole Foods and 80 other businesses in California which sell coffee must post a Proposition 65 regarding coffee because it might cause cancer. Even soda drinks apparently need a warning because a consumer might drink a thousand soft drinks a day and if so might have an increased cancer risk, which of course compels a Proposition 65 warning.

One California judge claimed that Proposition 65 “…results in ‘judicial extortion’ where bounty-hunting plaintiffs bring proposition 65 claims, admitting they have no specific evidence of any danger, and force the defendant to settle to avoid legal fees and the costs of performing an expensive expert scientific assessment.”

So notwithstanding views from the U.S. Environmental Protection Agency and numerous members of the international community, California has listed glyphosate under Proposition 65. California is relying solely because IARC identified glyphosate as a “probable carcinogen.” California’s law declares a substance must be “known.” 

The complaint attempts to describe the impact of California’s listing of glyphosate as a carcinogen. The plaintiffs believe that the Proposition 65 listing will require businesses to print false and disparaging glyphosate warnings, engage in expensive testing to demonstrate that glyphosate residues found in their finished product poses no risk, or stop using glyphosate treated crops. 

Such a result could be disastrous for grain producers and finished food producers. Once again, California is attempting to dictate how food is produced in the United States. The claims for relief listed in the complaint are compelling. Let’s hope the court listens.

(This article first ran in Farm Futures on November 28, 2017.)

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About Gary Baise

Gary H. Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Bode Matz PC. Specializing in agricultural and environmental issues, he also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, and National Sorghum Producers.

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