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US court stays glyphosate cancer listing case

A US federal judge has imposed an indefinite stay on litigation challenging the state of California's decision to list the herbicide, glyphosate, as a cancer-causing chemical. US District Judge William Shubb last week granted California Attorney General Xavier Becerra's request for a stay, agreeing that the litigation should be put on hold until the US Court of Appeals for the Ninth Circuit issues rulings in two other cases. They could provide legal guidance on the issue of compelled disclosure requirements.

Judge Shubb said that the stay is appropriate because the legal landscape has changed since he issued a preliminary injunction in February blocking the state from requiring cancer warnings on glyphosate products until the listing dispute has been resolved.

California added glyphosate to its Proposition 65 list of cancer-causing chemicals in July 2017, relying on the UN WHO’s International Agency for Research on Cancer's (IARC) 2015 declaration that the herbicide was a “probable human carcinogen”. Monsanto (now owned by Bayer), the National Association of Wheat Growers and other agriculture interests filed suit in the US District Court for the Eastern District of California, questioning the dependence on the IARC declaration and arguing that warning label requirements would violate their Constitutional protections for commercial speech under the First Amendment.

Judge Shubb explained that he had issued the injunction to block the warning labels because a cancer notice for glyphosate would not be "purely factually and uncontroversial" as the "heavy weight of evidence in the record" shows that the herbicide is not a human carcinogen.

But one of the legal cases that provided guidance on how to interpret the legal standard for “purely factual and uncontroversial” was subsequently vacated by a recent US Supreme Court ruling. The Ninth Circuit is considering that case, which was brought by CTIA, the telecommunications industry’s trade group, in a bid to upend the city of Berkeley’s law requiring retailers to warn consumers of the potential radiation exposure from mobile phone usage.

The Appeals Court is also considering another compelled disclosure case involving the American Beverage Association's challenge of San Francisco's ordinance that mandates warning labels on sodas and other sugary drinks. Mr Becerra's motion for a stay cited both cases, suggesting that the glyphosate complaint should wait for the Ninth Circuit's rulings.

The plaintiffs objected and asked Judge Shubb to deny the stay request, arguing that it would be unfair to their interests to put the glyphosate dispute in limbo until the Ninth Circuit acts.

Judge Shubb disagreed and said that as the two Ninth Circuit cases concerned the interpretation and application of the “purely factual and uncontroversial” requirement, new decisions in those cases would assist the Court in deciding any motion for summary judgment filed by the parties in the glyphosate case.

“Further, the court has already granted a preliminary injunction blocking enforcement of the warning requirement as to glyphosate in this case,” he explained in the September 6th order. “Plaintiffs identify no prejudice from a stay other than uncertainty to their members due to further delay. This uncertainty is insufficient to outweigh the savings of time and effort for the Court and the parties that may be gained from staying this case pending further guidance from the Ninth Circuit in CTIA or American Beverage.”

 
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