A U.S. appeals court recently ruled that California lacks the authority to enforce a regulation mandating cancer warnings on glyphosate, the main active compound in Monsanto’s widely used herbicide Roundup, which was acquired by Bayer in 2018. The Ninth Circuit ruled Nov. 7 that the most recent warning issued by the state of California perpetuates the assertion that the chemical is hazardous, a claim deemed “at best disputed,” Law360 reported.

The Ninth Circuit’s split panel upheld a summary judgment by a California federal judge, affirming the invalidity of the state’s updated glyphosate safe harbor warning. The published opinion emphasized that the most recent warning would compel companies to communicate a “controversial, fiercely contested message that they fundamentally disagree with,” rendering it unsustainable.

The panel underscored the absence of a scientific consensus regarding glyphosate’s carcinogenic properties, noting that although the International Agency for Research on Cancer (IARC) identified it as a probable human carcinogen in 2015, this viewpoint is not universally accepted within the scientific community.

Consequently, the proposed warning stating that “glyphosate is known to cause cancer” was deemed contentious and not purely factual, as the term “known” carries legal nuance not readily apparent to consumers without context.

In light of the lack of unanimity on the chemical’s impact, the panel asserted that California can only mandate commercial speech if it satisfies the requirements of intermediate scrutiny. The court concluded that none of the proposed glyphosate Proposition 65 warnings met these criteria, rendering the application of the warning unconstitutional.

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