The group of feed and food crop grower organizations, along with Monsanto Company brought the lawsuit against the director of the Office of Environmental Health Hazard Assessment (OEHHA) and the California attorney general toward the end of November.
The case was filed in the US District Court for the Eastern District of California.
The lawsuit asks for relief from a mandate that warnings concerning the cancer-causing potential of the herbicide glyphosate be added to multiple products, group lawyers said in the complaint.
The National Corn Growers Association (NCGA) became involved with the lawsuit because herbicides that include the chemical glyphosate are important to corn producers, said Kevin Skunes, NCGA president.
“We want to represent all corn growers,” he told FeedNavigator. “We want to be able to maintain farmers’ access to this important tool, and we want to avoid setting a precedent that leads to frivolous lawsuits.”
It also is possible that feed and animal products generated from animal eating feed produced from crops treated with glyphosate would be included in items needing to be labeled, he said. “Whatever the tolerance is, if it’s above so many parts-per-million, everything that has corn in it that could have had Roundup sprayed on would have to be labeled,” he added.
The California office of OEHHA told us that it does not comment on pending litigation. It added that it has fully complied with all laws related to the listing.
The groups involved in bringing the lawsuit include the National Association of Wheat Growers, National Corn Growers Association (NCGA), US Durum Growers Association, Western Plant Health Association, Missouri Farm Bureau, Iowa Soybean Association, South Dakota Agri-business Association, North Dakota Grain Growers Association, Missouri Chamber of Commerce and Industry, Monsanto Company, Association Industries of Missouri, and Agribusiness Association of Iowa.
Their goal is to prevent a mandate that warnings regarding the herbicide glyphosate be added to numerous products after the ingredient was added to a state list of chemicals considered potential hazardous or possible carcinogens, the group’s lawyers said in the complaint.
“Under California’s Proposition 65, businesses must warn Californians about the presence of chemicals that are ‘known to the state to cause cancer,’” they said. OEHHA made a determination earlier this year that glyphosate would be added to the list of chemicals subject to Proposition 65.
The chemical has been approved for use in the US for 250 agricultural crop applications, and been reviewed by the federal government for decades, they said. “For several decades, the federal government has approved the use of glyphosate under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), based on extensive scientific analyses of each specific use of the herbicide,” they added.
“It is widely utilized worldwide, including throughout the US, in cultivation of many major crops (such as corn, soybeans, canola, wheat, and oats), and in California, in cultivation of almond, citrus, and cotton crops, among others,” they said. “Glyphosate is regarded as one of the safest herbicides ever developed.”
Previously, OEHHA also has recognized glyphosate as a safe herbicide, they added.
The action was made not because of a scientific or regulatory review, but because the International Agency for Research on Cancer (IARC) made the determination that the chemical is “probably carcinogenic to humans,” group lawyers argued in the lawsuit. Products found to be potential carcinogens by the IARC automatically requires a listing in Proposition 65.
The required warning label also allegedly raises the potential for private lawsuits if violations are found, they said.
Group lawyers claimed that listing the chemical as a carcinogen and use of the warning labels violate the first amendment rights of the feed and food crop producers because it requires them to “make false, misleading, and highly controversial statements about their products,” they said. “The listing and warning requirement also conflict with, and are preempted by, the FDCA [US Food, Drug and Cosmetics Act], and violate the due process clause of the Fourteenth Amendment.”
“California’s treatment of glyphosate under Proposition 65 threatens significant disruption to multiple of the nation’s supply chains, including the nation’s food production and processing supply chains,” they alleged. “As set forth herein, the listing threatens to change the way of life for many farmers who currently rely on glyphosate herbicides as a mainstay of their farming practices.”
The group claims that potential outcomes to the requirement could include that producers who sell food products made with glyphosate-treated crops in California would need to add the glyphosate warning to their products, conduct additional product testing or stop using glyphosate-treated crops.
“With the threat of enforcement under Proposition 65, a number of grain handlers and finished food producers will require that farmers providing inputs for food products destined for California either not use glyphosate on their crops or certify that their crops do not contain glyphosate residues beyond particular levels, which will in turn require expensive testing, segregation of glyphosate-treated crops from non-glyphosate-treated crops, or a halt on using glyphosate at all – each an undesirable option and one that comes at considerable expense,” said the group’s lawyers in the complaint.
The group is asking for a declaration that the Proposition 65 listing of glyphosate and the required warning labels violate the First Amendment, the due process clause of the Fourteenth Amendment and the Supremacy Clause of the US Constitution, they said. And for a preliminary and permanent injunction prohibiting enforcement of Proposition 65 and its regulations for glyphosate.
The group is also asking for costs, attorney’s fees and expenses.
Response to the lawsuit
The OEHHA initially provided some of its reasoning when it decided to add glyphosate to the Proposition 65 list.
The office said that it would provide a safe harbor level for exposure below a certain level. It added that the Proposition 65 does not ban or restrict use of listed chemicals.
Producers involved in the lawsuit say they would like sound science to be used in the product’s review rather than emotion, said Skunes. The warning label is expected to limit sales in California and other parts of the country.
“If everything has to be labeled with this false label that could be a disaster for agriculture as we know it,” he said.
“We were pretty excited to join in the lawsuit because as conventional and modern agriculture moves forward we’re not going to do something we think is unsafe,” he said. “The data shows that it is safe, the way we’re using it is safe and we wanted to get out ahead of this one.”
Additionally, there are not many alternatives to using glyphosate products that are as effective and inexpensive, he said.
“We believe this is a fight that we needed to enter to protect a tool – it’s important to corn growers, soybeans, a broad spectrum of crops are using this,” said Skunes. “We thought we needed to protect this technology.”
A pretrial schedule conference in the case has been set for March, according to court documents.