California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly referred to as “Proposition 65” or “Prop 65”) was passed with the intention of providing consumers with information regarding cancer-causing agents in products that would allow consumers to make an informed decision as to whether to purchase the product. Warnings are intended to be “clear and reasonable” and are to be placed on products that contain a chemical that the state of California determines is cancer-causing or causes reproductive issues. The list of chemicals currently on the Prop 65 list now number at more than 800, which can cause significant difficulties for companies to keep track of and determine whether their products contain any of the chemicals on the Prop 65 list.

Earlier this week, a California federal judge ruled that Monsanto would not have to provide a warning that its Roundup weed killer contained glysophate, as a consumer reading the warning could wrongly conclude that glysophate definitively causes cancer. Monsanto and various farming associations brought the lawsuit against the Office of Environmental Health hazard Assessment (which oversees the Prop 65 regulations) to prevent California from including glysophate on its Prop 65 list and from requiring that the Roundup weed killer include a warning regarding glysophate.

At issues was Monsanto’s argument that requiring a warning label would violate the First Amendment, as the information in the warning label would be false and misleading. Although the court found that the issue does not fall within the purview of the First Amendment, it did find that the warning label constitutes “commercial speech” and would therefore need to be based on purely factual and uncontroverted information, as outlined in the U.S. Supreme Court decision of Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626 (1985). The court found that even if California reaches a determination that glysophate causes cancer, requiring a warning could still be misleading due to the fact that other organizations, including the EPA, have found no evidence that glysophate causes cancer. The court held that virtually all other government agencies that have studied glysophate have not found any evidence linking the chemical to cancer.

The ruling is a victory for Monsanto, as the Roundup weed killer product has been the subject of other legal attacks due to concerns over alleged health effects of the product. The court’s decision provides an interesting avenue for other companies to challenge Prop 65 warning label requirements under California law.

CMBG3 Law LLC has represented clients in products liability matters, especially with respect to warning label issues, for many years. Our attorneys in California are well-versed on Prop 65 issues and requirements. We provide the most current legal advice to our clients by staying on top of developments in science, medicine, and regulations regarding a wide variety of substances and products used by consumers every day. If you have any questions or would like more information, please contact John Gardella (email him or 617-936-4353).