Judges denied Monsanto’s request for a review of a court ruling that upheld California state’s authority to add glyphosate to its Proposition 65 list of carcinogens

EXCERPT: Prop. 65, a 1986 ballot measure, requires the state [California] to publish a list of chemicals known to cause cancer or birth defects.
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Monsanto loses another court case over its widely used weed killer

Bob Egelko
San Francisco Chronicle, Aug 15, 2018
https://www.sfchronicle.com/news/article/Monsanto-loses-another-court-case-over-its-widely-13159459.php

The state Supreme Court rejected a challenge by Monsanto Co. on Wednesday to California’s decision to list the main ingredient in its Roundup herbicide as a cause of cancer, the same chemical that a San Francisco jury found responsible for a former school groundskeeper’s cancer in a $289 million verdict last week.

The justices denied Monsanto’s request for a review of a lower-court ruling that upheld the state’s authority to add the herbicide glyphosate to its Proposition 65 list of carcinogens. Justice Ming Chin voted to take up the appeal, but four votes were needed to grant a hearing by the court, which currently has six members.

Prop. 65, a 1986 ballot measure, requires the state to publish a list of chemicals known to cause cancer or birth defects. A listing prohibits businesses from discharging the chemical into sources of drinking water and requires them to warn members of the public who may be exposed to the substance.

The state added glyphosate to the list in July 2017 based on findings by an international agency that the chemical was a probable cause of cancer in humans. But a federal judge has ruled that requiring Monsanto to put cancer warnings on Roundup labels would violate the company’s freedom of speech because a number of scientific studies have concluded that glyphosate is not dangerous.

The company cited those studies, and the U.S. Environmental Protection Agency’s refusal to ban or restrict glyophosate, in defending itself against a suit by Dewayne “Lee” Johnson, who sprayed Monsanto’s products for years as a groundskeeper for the Benicia Unified School District and now is gravely ill with non-Hodgkin’s lymphoma.

On Friday, a San Francisco Superior Court jury unanimously found Monsanto responsible for Johnson’s cancer and awarded him $39 million for wage losses, pain and suffering, and $250 million in punitive damages against the company for acting with “malice or oppression” in exposing him to the chemical without revealing its dangers. Monsanto plans to appeal.

In Wednesday’s case, Monsanto challenged a Prop. 65 provision that requires the state to list a chemical as a carcinogen if it has been classified as one by the International Agency for Research on Cancer. The agency is an arm of the World Health Organization and has a governing council from 25 nations, including the United States.

The agency classified glyphosate as a probable human carcinogen in 2015 based on 17 scientists’ reviews of research on animals — though Monsanto contended other scientists’ review of the same studies had reached the opposite conclusion.

Allowing an international agency to name the chemicals that California then classifies as dangerous amounts to an unconstitutional delegation of state regulatory authority to a foreign entity, Monsanto’s lawyers argued. But a state appeals court in Fresno ruled in April that the voters who approved Prop. 65 had decided that state health officials had failed to provide enough protection from hazardous substances and needed assistance from an internationally recognized agency.

The voters “identified the broad policy goals” — identifying and listing known cancer-causing chemicals — “and provided a framework within which new chemicals could be added,” Presiding Justice Brad Hill said in a 3-0 ruling of the Fifth District Court of Appeal. He said Prop. 65 itself changed state regulation of the chemicals, and delegated the factual determinations to the international body.

The ruling became final Wednesday when the state’s high court denied review.

In response, Monsanto said in a statement that California’s listing of glyphosate as a carcinogen “contradicts 40 years of science and the conclusions of regulatory bodies around the world. The listing requires judicial intervention and correction. We’re considering our options for further legal action.”

The case is Monsanto vs. Office of Environmental Health Hazard Assessment, S249056.