Monsanto Loses Prop 65 Listing Case

MARCH 15, 2017

A California state judge has ruled against Monsanto Company’s legal challenge to the California Office of Environmental Health Hazard Assessment’s (OEHHA) mechanism to add chemicals to its Proposition 65 list.

While the specific chemical — glyphosate, a weed killing ingredient in its Roundup® product — is of minimal interest to ILMA members, the process question involved is intriguing and potentially significant.

Monsanto argued that OEHHA’s carcinogen determination is contrary to EPA’s assessment and conclusions reached by other California regulatory bodies.

Further, the company asserted that the mechanism to list glyphosate on Prop 65 violates the U.S. and California Constitutions by unlawfully delegating its authority to the International Agency for Research on Cancer (IARC) to ascertain which chemicals are carcinogenic.

Monsanto contended that IARC's cancer listings violate due process protections because there is no procedural mechanism to ensure that IARC did not act in an arbitrary and capricious manner in its determinations.

The state court judge dismissed Monsanto's claims, holding that California's voters and legislature “have established the basic legislative scheme and made the fundamental policy decision with regard to listing possible carcinogens under Proposition 65, and then allowed IARC to make the highly technical fact-finding decisions with regard to which specific chemicals would be added to the list.”

Despite losing at the trial court level, Monsanto said it will appeal the decision and will continue to fight the listing and proceed with other pending Prop 65 cases related to glyphosate.

If an appeals court or another court of competent jurisdictions finds that OEHHA did unconstitutionally delegate its authority to IARC, it could have significant ramifications for the prospective listing of additional chemicals on California's Prop 65.

Meanwhile, the American Chemistry Council (ACC) has started an advocacy effort to reform the way IARC operates, announcing recently its "Campaign for Accuracy in Public Health Research" (CAPHR) that seeks to promote "credible, unbiased and transparent science as the basis for public policy decisions."

ACC is concerned specifically with the way IARC operates its Monographs Program. ACC contends the program is plagued with process and scientific defects that ultimately leads to public confusion and ill-informed policy decisions, including Prop 65 listings.

ACC says that IARC’s approach is fatally flawed, in part, because it only considers a substance’s hazard and whether a chemical could cause cancer in humans at any level or under any circumstances, rather than focusing on real-world exposure levels.