Roundup Warning Requirements in California Deemed Unconstitutional by 9th Circuit

A federal appeals court has struck down a California requirement for Roundup weed killer products sold in the state to include warnings about the risk of cancer associated with the active ingredient glyphosate.

The opinion (PDF) was issued by U.S. Court of Appeals for the Ninth Circuit on November 7, finding that California’s Prop 65 law mandating Roundup warning labels constituted “compelled speech,” infringing on First Amendment freedom of speech protections.

Bayer and its Monsanto subsidiary have waged a long legal battle over Roundup warning requirements in California, after the California Office of Environmental Health Hazard Assessment (OEHHA) deemed that the herbicide belonged on the Prop 65 list, which includes toxic chemicals that could pose a risk to public health.

The fight resulted in a 2018 decision by a California state appeals court, which declared that the state had the right to add glyphosate to its Prop 65 list. Being on the list requires Monsanto and other herbicide manufacturers to add a cancer label warning to Roundup and all glyphosate-containing products.

The decision to add the herbicide to the Prop 65 list came after the World Health Organization’s International Agency for Research on Cancer (IARC) determined that glyphosate is a probable human carcinogen in mid-2015, leading to worldwide concerns about the link between Roundup and non-Hodgkin’s lymphoma.

Bayer and its Monsanto unit have also faced more than 120,000 Roundup lawsuits brought in recent years by former users diagnosed with non-Hodgkins lymphoma, each raising similar allegations that the manufacturers failed to adequately warn about the cancer risks associated with glyphosate, and billions in settlements have been paid to resolve many of the claims.

The Ninth Circuit’s opinion indicates that the science around glyphosate’s links to cancer is far from settled, and determined in a split decision that California’s requirements were thus not purely based on factual and uncontroversial evidence.

“The proposed warning that ‘glyphosate is known to cause cancer’ was not purely factual, because the word ‘known’ carries a complex legal meaning that consumers would not glean from the warning without context and thus the word was misleading,” the majority opinion states. “Moreover, saying that something is carcinogenic or has serious deleterious health effects— without a strong scientific consensus that it does—is controversial.”

The court determined that California has other tools which can protect the public interest without forcing agricultural businesses to put warning labels on their products that they fundamentally disagree with and are not proven science. The Court noted that California could conduct an advertising or educational awareness campaign, or other measures, without forcing the manufacturers to take part in compelled speech in violation of their constitutional First Amendment rights.

California state officials have not yet responded to the ruling, and it is unclear whether they plan to appeal the decision to the U.S. Supreme Court or take a different approach to warning Californians about Roundup cancer risks.

November 2023 Roundup Lawsuit Update

While Bayer and Monsanto have paid billions of dollars to resolve claims in California and nationwide, there are still thousands of claims moving forward through the U.S. court systems involving individuals who rejected early settlement offers. In addition, new Roundup lawsuits continue to be filed as individuals continue to be diagnosed with non-Hodgkin’s lymphoma following prior exposure to the weed killer.

At least three Roundup cases have gone to trial over the past few weeks, resulting in combined verdicts of more than a half billion dollars in new judgments in three separate venues.

In early October 2023, a St. Louis jury awarded $1.25 million in damages from Roundup, for a plaintiff who developed non-Hodgkin’s lymphoma after using the weed killer as part of a neighborhood restoration project. That was followed only a few weeks later by a $175 million Roundup verdict in Philadelphia, involving a man who developed cancer after two decades using the weed killer in his garden.

Finally, on October 31, a San Diego jury returned a $332 million Roundup award for a former land surveyor who developed the cancer after using Roundup on lawns and gardens for 35 years. In addition to compensatory damages, the verdict included a massive punitive damages award, which was added to punish the manufacturers for withholding information from consumers for decades.

A steady stream of additional trials are expected to begin in the coming months, unless Bayer and Monsanto increase settlement offers to many of the holdouts.