A Cancer Scare Defeat in California
Cancer is a scary disease, but Californians have been determined to scare themselves more than most with warnings about the supposedly cancer-causing material in everything from shoes to cat litter. Now a federal judge says these mandatory fright signs may violate the First Amendment when not backed by accurate science.
Judge William Shubb issued a preliminary injunction two weeks ago blocking California from compelling businesses to issue warnings about a chemical known as glyphosate. Farm groups and businesses sued after the state required new cancer warnings on food products that contain wheat, corn, soybeans and other crops exposed to the common herbicide.
The Environmental Protection Agency has deemed that glyphosate is safe, and California’s Office on Environmental Health Hazard Assessment also found it “unlikely to pose a cancer hazard to humans.” But under the 1986 state Safe Drinking Water and Toxic Enforcement Act, also known as Prop. 65, California defers to the World Health Organization’s International Agency for Research on Cancer. In 2015 the France-based United Nations outfit claimed glyphosate is “probably carcinogenic.”
Reuters later revealed that the U.N. agency ignored substantial evidence showing no link between glyphosate and cancer. One adviser to the agency, Christopher Portier, worked on the glyphosate decision even as he received pay from Lundy & Lundy, a law firm that brings cancer-related class-action lawsuits, according to a deposition in a different lawsuit.
The U.N. outfit is notorious for bad science. The group has assessed 1,067 products and ruled only once that a substance was “probably not carcinogenic to humans.” The group’s list of cancer risks includes eating red meat, french fries or “pickled vegetables (traditional Asian),” drinking “very hot beverages,” using fluorescent lights, working the late shift, having your dentist fill a cavity, getting your hair colored, and using aloe, talc or Tylenol.
Businesses can’t appeal and the U.N. group’s glyphosate comments automatically triggered an entry on California’s carcinogens list. California then set a “safe harbor” level for trace amounts of glyphosate, and the cancer warning is mandatory for anything above that.
This means businesses have an incentive to put a warning label on any product even possibly exposed to glyphosate, given that trial lawyers can bring class-action suits that cost up to $2,500 per violation per day. But if businesses include the cancer warnings on grocery staples like Cheerios or bread, they risk damaging their brands. That risk can be nationwide, given how difficult it would be for farmers to create a distinct supply chain or label only those crops destined for California.
Judge Shubb agreed with the plaintiffs that California can’t legally compel “false, misleading and highly controversial statements about their products” based on faulty conclusions about glyphosate. He said the government can compel businesses to make some disclosures if they are “purely factual and uncontroversial information.”
But assertions that glyphosate causes cancer are “misleading at best,” the judge wrote. “Providing false or misleading labels to consumers also undermines California’s interest in accurately informing its citizens of health risks at the expense of plaintiffs’ First Amendment rights.” No word on whether California will appeal, but meantime count this a victory for common sense and the rule of law.