When scientific controversy grants free speech protection

When scientific controversy grants free speech protection

When scientific controversy grants free speech protection 150 150 David Loughran

Monsanto scored a victory in a California federal court on Tuesday in its years-long battle over the State of California’s decision to list glyphosate—the main ingredient in the company’s widely-applied Round-Up herbicide—as “known to the State of California to cause cancer.” U.S. District Court Judge William B. Shubb sided with Monsanto and several farming associations in deciding that compelling companies to label products (including agricultural products) containing glyphosate with a cancer warning violates their First Amendment right to free speech (the decision does not apply to the listing itself). Judge Shubb’s decision follows U.S. Supreme Court precedent in treating the labeling requirement as commercial speech which cannot be compelled unless it is based upon “purely factual and uncontroversial information” and is “reasonably related” to a substantial government interest.

There are few chemicals that generate more controversy today than does glyphosate. Environmental groups lobby tirelessly for a ban while industry groups argue vehemently that glyphosate is safe and effective. Meanwhile plaintiff attorneys are actively recruiting injured farm workers for bellwether lawsuits, which are being tried.

We have been tracking the science on glyphosate here at Praedicat for years. A substantial body of research addresses the hypothesis that exposure to glyphosate causes cancer (non-Hodgkin’s lymphoma, most commonly). Cell studies demonstrate that glyphosate is genotoxic, but epidemiological studies most commonly cannot reject the null hypothesis that glyphosate exposure has no effect on cancer in humans. This mixed science provides fodder for the plaintiffs’ bar, but our model suggests that it is unlikely to support mass litigation today or evolve to support mass litigation in the future.

California’s listing of glyphosate under Prop. 65 stems from the decision of the International Agency for Research on Cancer (IARC) in March 2015 to classify glyphosate as probably carcinogenic to humans (Group 2A). Praedicat’s algorithmic scoring of scientific literatures typically accords well with IARC determinations, but not in this case. Many scientists were also surprised by IARC’s decision on glyphosate. Regulatory agencies in many countries, including most recently the U.S. Environmental Protection Agency in December 2017, have ruled that glyphosate likely does not cause cancer in humans at current exposure levels.

While Monsanto might prevail in its effort to prevent California from labeling glyphosate a carcinogen, First Amendment protections will not help the company defend itself against the growing number of personal injury lawsuits. Lawsuits by agricultural workers alleging their blood cancer was caused by exposure to glyphosate quickly emerged following the IARC determination. Many of these lawsuits are now consolidated in multidistrict litigation before the U.S. District Court for the Northern District of California where Monsanto moved in October 2017 for summary judgment on the basis that the plaintiff’s expert testimony is not admissible because it fails to satisfy the U.S. Supreme Court’s Daubert standard. Our scoring of the totality of the glyphosate literature is consistent with this argument.

It is likely that the controversy over glyphosate and cancer will continue until more definitive scientific evidence emerges. Until then, it is Daubert (and the underlying science), not the First Amendment, that will keep the budding glyphosate personal injury litigation from blossoming into a full-blown mass litigation event.

“On the evidence before the court, the required warning for glyphosate does not appear to be factually accurate and uncontroversial because it conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glyphosate causes cancer,” Judge Stubb said.