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Monsanto Fights Back Against Environmental Protection Agency Proposition 65 Classification

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On January 21, 2016, Monsanto Co., makers of the popular herbicide Roundup, issued a preemptive strike and sued the state of California to seek an injunction to stop the state from including Glyphosate, the main ingredient in Roundup, on the state's Proposition 65 list. Roundup generated nearly $5 billion in revenue for Monsanto Co. in 2015 alone. As a result, Monsanto Co. has a vested interest in Glyphosate's inclusion on the Proposition 65 list, run by California's Office of Environmental Health Hazard Assessment ("OEHHA"), which tracks specific chemicals known to cause cancer, birth defects, and other reproductive harm and requires products containing these chemicals to carry a consumer warning.

In September 2015, California's Environmental Protection Agency ("Cal/EPA") became the first regulatory agency in the United States to notice its intent to list Glyphosate as a known carcinogen. Cal/EPA's decision came about following the World Health Organization's classification of glyphosate as a potential carcinogen. As we previously reported, following this announcement in November 2015, former coffee farmer, Christine Sheppard, sued Monsanto Co. claiming that exposure to the Glyphosate in Roundup contributed to her development of non-Hodgkin's lymphoma. In response, Monsanto Co. has gone on the offensive, and sued OEHHA in California state court.

Placing the chemical on the Proposition 65 list would require Monsanto Co., and others with Glyphosate-containing products, to warn consumers that the chemical is known to cause cancer and would limit the product's use by certain municipalities. In its lawsuit, Monsanto Co., alleges that including such a warning is unconstitutionally compelled speech and requires Monsanto Co. to issue factually inaccurate statements. In support, Monsanto Co. pointed to the OEHHA's 1997 and 2007 evaluations on the safety of Glyphosate, wherein the agency found that the chemical was unlikely to pose a carcinogenic hazard to humans. Monsanto Co. further argued that public harm will result if Glyphosate is allowed to be listed under Proposition 65, as it will create consumer fear and it will cause product users to switch to less effective herbicides for vegetation management that may not provide the same level of safety, effectiveness, or reliability.

OEHHA has not yet responded to Monsanto Co.'s claims. Significantly, however, personal injury law firms around the United States have reported their intent to prepare a mass tort action against Monsanto and other manufacturers of glyphosate containing products for allegedly knowingly misinforming the public and farmworkers about the dangers of the chemical and its link to non-Hodgkin's lymphoma and other maladies. Therefore, it is unlikely that the debate over the safety of glyphosate will end anytime soon.

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