State Must Accept Foreign Agency’s Determination on Carcinogens

Friday, April 20, 2018

Page 1

Court of Appeal:

State Must Accept Foreign Agency’s Determination on Carcinogens

By a MetNews Staff Writer

—AP

The First District Court of Appeal yesterday affirmed a judgment on the pleadings, rejecting the contention by Monsanto that the state Constitution does not permit a requirement, created by Proposition 65, that a state agency bow to the determination of an agency in France that a chemical is carcinogenic.

California is not barred by the state Constitution from listing a chemical as carcinogenic based solely on a determination of a foreign agency, the Court of Appeal held yesterday, spurning contentions by Monsanto, producer of the herbicide, “Roundup.”

The state Office of Environmental Health Assessment placed that product, in use for more than 40 years, on the list of carcinogens last July, and Monsanto was ordered to place a warning label on the containers by July 1 of this year, as a condition of making sales in California. However, a federal judge on Jan. 26 temporarily blocked enforcement of the labeling order.

In yesterday’s state Court of Appeal decision, Justice Robert L. Dondero of the First District’s Div. One said:

“At the heart of this case is a singular assertion. Appellants believe it is improper for a foreign entity, unaccountable to the citizens of California, to determine what chemicals are known to the state to cause cancer.”

Agency in France

Under Proposition 65, there must be placed on the list any “chemical known to the state to cause cancer,” and any chemical found to be carcinogenic by the International Agency for Research on Cancer—an agency of the World Health Organization, based in Lyon, France—must be included.

Glyphosate, the main ingredient in Roundup, is “probably carcinogenic to humans,” according to a 2015 determination by that agency. The finding has not been substantiated within the United States.

Appealing from an judgment on the pleadings in its action for injunctive and declaratory relief by the Fresno Superior Court, Monsanto argued that Art. II, §12 precludes reliance on the determination of a private agency. That provision says:

“No…no statute proposed to the electors by the Legislature or by initiative, that...names or identifies any private corporation to perform any function or to have any power or duty, may be submitted to the electors or have any effect.”

Dondero’s Opinion

Dondero wrote:

“On appeal, the parties dispute whether the Agency is a ‘private corporation,’ whether it was named or identified by the initiative, and whether the initiative provided the Agency with any power. We conclude appellants cannot state a claim for relief because the Agency does not qualify as a private corporation under the constitutional provision. Accordingly, we do not reach the remaining disputes.”

While Monsanto contended that the term “private corporation” encompasses “a range of organizations that are not accountable to governmental bodies,” Dondero said the arguments “stretch the meaning of a private corporation to the breaking point.”

He declared:

“While the Agency does not cleanly qualify as a public corporation under California law, or fit the general notion of a domestic public agency, it need not do so to be exempt from the prohibitions of article II, section 12. Rather, it merely need not be a private corporation. Under the facts alleged in the complaint and acknowledged in this appeal, the Agency meets this test. Its formation as an intergovernmental agency under international law and its oversight and general management by United States and foreign government agents demonstrates that the Agency is not a private corporation as contemplated by article II, section 12. Accordingly, the trial court was correct in dismissing this claim.”

No Unlawful Delegation

Dondero said there was no unlawful delegation of rulemaking authority to the agency. He explained that while a manufacturer cannot cause removal of a chemical from the list, “the statute creates exemptions to liability provided the ‘person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question.’ ”

He remarked:

“This built in safeguard ensures that chemicals that can be shown not to be carcinogenic will not be subject to the enforcement provisions of Proposition 65. Thus, the statutory scheme essentially designates the Agency as an authoritative body on potential carcinogens but protects those potentially subject to its determinations by allowing them to affirmatively disprove the Agency’s factual determinations.”

The case is Monsanto Company v. Office of Environmental Health Hazard Assessment, F075362.

In the federal action, Senior Judge William B. Shubb of the Eastern District of California said in his January ruling:

“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,”