EPA Finds Key Ingredient of Roundup Herbicide is Not Carcinogenic and Bans California Retailers from Including Cancer Warnings

Numerous lawsuits have been filed against Bayer AG, which obtained the rights to the herbicide Roundup in its takeover of Monsanto, as well as a number of retailers which regularly sell the product, alleging these companies failed to warn that glyphosate, Roundup’s key ingredient, can cause non-Hodgkin’s lymphoma and other types of cancer. Within the last year, there have been several large plaintiff verdicts relating to Roundup (ranging from almost $40 million to $2 billion), finding that the glyphosate in Roundup was a substantial factor in causing plaintiffs’ non-Hodgkin’s lymphoma. As substantial media attention has focused on these lawsuits, and more plaintiffs are being actively recruited for litigation, the Federal Environmental Protection Agency (“EPA”) has offered California retailers of products containing glyphosate a possible defense in failure to warn cases.

In a letter issued August 7, 2019, not only has the EPA reiterated its earlier finding that glyphosate is “not likely to be carcinogenic to humans,” but it has forbidden retailers in California from adding warnings that glyphosate products could cause cancer. This applies if the warning is based solely upon the glyphosate content. The EPA considers warnings that glyphosate is a possible human carcinogen to be “false and misleading.” As EPA Administrator Andrew Wheeler stated, “It is irresponsible to require labels on products that are inaccurate when EPA knows the product does not pose a cancer risk. We will not allow California’s flawed program to dictate federal policy.”

California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65“) requires all businesses to inform consumers about significant exposures to chemicals that may cause cancer. In July 2017, California identified glyphosate as a chemical known to the state to cause cancer for purposes of Proposition 65. This classification was given to glyphosate products such as Roundup because the International Counsel for Research on Cancer (“IARC”) classified glysophate as “probably carcinogenic to humans.” Despite the classification by IARC, the EPA asserts that its scientists have conducted independent studies and determined no cancer link. As such, the EPA has ordered all Proposition 65 language be removed from the products within 90 days. It will no longer approve any labeling that contains cancer warnings relating to glyphosate.

In response to the EPA’s letter, California maintains that it will not take action to remove glyphosate from its Proposition 65 list. The list categorizes glyphosate as a probable carcinogen and requires warnings. In a statement released on August 8, 2019, California’s Office of Environmental Health Hazard Assessment (“OEAHH”) maintained that it is not forcing the EPA to do anything based upon California’s classification; instead the OEAHH claims that the state is only giving California consumers the “right to know” about dangers associated with certain chemicals. Presumably, this means it may take enforcement action against those retailers who do not include Proposition 65 warnings relating to glyphosate products such as Roundup. But where does that leave retailers? Between a rock and a hard place.

California retailers still must comply with Proposition 65. Despite the EPA’s position, based on the comments by the OEAHH, they still must warn consumers of possible dangers of cancer relating to the use of glyphosate products or face enforcement by the state. Separate warnings on shelves or through pamphlets may relieve a retailer from warning duties in California, but then they may face fines or other enforcement action for false labeling with the EPA. It is a quandary to be sure, and time will tell how retailers are treated by both the state and/or federal government if they choose to either keep or remove warnings relating to glysophate. With regard to the spate of California state court Roundup lawsuits facing numerous retailers, however, it is expected that retailers will take advantage of the EPA’s position, and the numerous studies behind it, to support a defense for a failure to warn claim under a strict liability theory. However, the EPA’s finding will not relieve retailers from strict liability theories for manufacturing or design defects which are also included in such lawsuits and now may become a greater focus for plaintiffs.

Dee Cohen Katz currently represent a retailer in the defense of the Roundup litigation. She, along with other Walsworth attorneys, also regularly defend retailers and manufacturers in products liability and negligence lawsuits involving strict liability. For more information regarding Roundup or environmental law, please contact Dee by email or at (714) 634-2522.