Round One Goes to Roundup: Court Temporarily Enjoins Proposition 65 Warnings for Glyphosate and Glyphosate Residues in Foods

Last Monday, a federal judge temporarily barred California from requiring cancer warnings on products that contain detectable amounts of glyphosate—the main ingredient in Monsanto’s flagship herbicide Roundup. Trace residues of glyphosate in food products had already become a potential target of Proposition 65 bounty hunters, who presumably had already begun testing foods purchased in California grocery stores to determine which companies would receive their first round of 60-day intent to sue notices.

The preliminary injunction by U.S. District Court Judge William B. Shubb declined to remove glyphosate on the Proposition 65 list of chemicals “known to the State of California to cause cancer,” but, at least for now, bars the State from imposing the corresponding warning requirement while the case challenging its listing proceeds on its merits. The court’s ruling is based on a First Amendment, compelled false speech analysis—Judge Shubb determined that a Prop 65 cancer warning on glyphosate or glyphosate residues could mislead a reasonable consumer since the vast majority of scientific and health organizations have found no evidence that glyphosate causes cancer in humans.

The preliminary injunction is a win for glyphosate manufacturers, agriculture, and food companies as trace amounts of glyphosate—one of the most widely used herbicides in agriculture—can remain on crops after they are harvested. Residues of it can be detected in a variety of produce, processed commodities, and finished food products. Indeed, testing by the U.S. Food and Drug Administration and environmental groups have detected trace amounts of glyphosate in an assortment of agricultural commodities and food products, including in soybeans, corn, oats, and baby food to name just a few.

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