U.S. EPA and California Remain at Loggerheads Over Labeling of Glyphosate as Carcinogen

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August 21, 2019Jomarie GarciaBlog

In the wake of a public challenge from California’s Office of Environmental Health Hazard Assessment (OEHHA), the U.S. Environmental Protection Agency (EPA) this month doubled down on its ruling that glyphosate poses no risk to public health under its current registered uses — saying it will no longer approve labeling that includes California’s warning that the substance is a known carcinogen.

Verisk 3E Analysis

On 8 August 2019 the EPA issued a statement that its review of the latest scientific evidence confirmed that glyphosate does not increase cancer risks, contradicting the state of California’s decision to list the herbicide as a known carcinogen in July 2017. In its own statement on 12 August 2019, the OEHHA accused the federal agency of categorically dismissing extensive scientific evidence from widely respected experts. Unmoved, the EPA said on 13 August 2019 that it would no longer accept as valid labels that include a warning that the substance is a known carcinogen.

The continued dispute potentially means labels that the EPA recognizes as valid would not be legal in California, while labels that meet California’s requirements would not be legal in the eyes of the federal agency.

Background to the Contentions

California listed glyphosate, the most widely used herbicide in the U.S., as a known carcinogen in July 2017 under the authority of the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65). The decision was based on the World Health Organization’s International Agency for Research on Cancer’s (IARC) finding that humans exposed to different formulations of glyphosate have a higher probability of cancer, which in turn was informed by the evaluation of extensive scientific evidence made by a scientific panel composed of experts from several federal agencies including the EPA. Thus, OEHHA finds EPA’s current position to be contradictory and misinformed.

The EPA, however, contends OEHHA’s labeling requirement is not in alignment with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Further, the federal agency claimed that the state should have ceased enforcing the warning requirements on glyphosate on the premise of carcinogenicity since the United States District Court for the Eastern District of California ruled the warning requirement to be false or misleading. OEHHA, on the contrary, claims the Proposition 65 listing of glyphosate was unanimously upheld by the California Fifth District Court of Appeals, and thus, remains valid.

The EPA has stated that it will no longer approve labeling that includes the Proposition 65 warning statement for glyphosate-containing products and that businesses should remove these statements from their products under the premise of being inconsistent with the letter of law, i.e., FIFRA. Further, the EPA requests businesses to submit amended draft labels for the products they commercialize containing glyphosate that presently bear the Proposition 65 label.

Business Impact

In its statement OEHHA clarified that the law of the state does not dictate federal policy and does not require the EPA to take any action on any Proposition 65 chemical, including glyphosate. Yet, the designation of glyphosate as a Proposition 65 carcinogen raises the question as to whether the state will accept labels without Proposition 65 warnings and regard the labels valid.

In a follow-up statement the EPA summarized congressional and stakeholder support of their decision not to approve labels indicating that glyphosate is carcinogenic by indicating endorsements of the agency’s belief that California Proposition 65 labels could lead to false and inaccurate information about glyphosate. The agency also included the comprehensive evaluation of glyphosate summarized by the EPA that informed its conclusions.

Businesses should monitor these developments closely as EPA’s and OEHHA’s conflicting stance could create uncertainty at the time of compliance.

Note to readers: This article does not constitute legal interpretation by Verisk 3E and should not be construed as legal advice on glyphosate. The contents of this article are provided for informational purposes only. Please consult with your legal counsel and/or seek expert advice from the federal and state authorities cited in the article to resolve any confusion related to the dispute.