On July 7, 2017, California became the first state in the nation to list Glyphosate, the active ingredient in Monsanto’s Roundup weed killer, to the state’s Proposition 65 list of chemicals known to cause cancer. OEHHA’s decision was pursuant to the requirements of the Safe Drinking Water and Toxic Enforcement Act, better known as California Proposition 65, a ballot initiative approved by voters in 1986 to address toxic chemical exposure concerns. Prop 65 requires the State of California to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm.
OEHHA implements Prop 65’s toxic chemical list requirements through a series of related regulations. These include the following:
Thus, in March 2015, when IARC classified glyphosate as a “probable human carcinogen,” the foregoing legislation permitted OEHHA’s adopting IARC’s findings as a basis for adding glyphosate to the Prop 65 list.
Once listed as carcinogen by IARC, warnings were required to prevent unwitting exposure to glyphosate. To wit, Health & Safety Code Section 25249.6 states: “No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer of reproductive toxicity without first giving clear and reasonable warning…”
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A protracted process starting with the 2015 IARC report led to the final decision to list a California glyphosate warning in accordance with Prop 65. The following timeline shows how California EPA arrived at its decision:
According to the report, non-Hodgkin lymphoma (NHL) and other hematopoietic cancers are the cancers most associated with glyphosate exposure. The report further concluded that glyphosate exposure caused DNA and chromosomal damage in human cells, as well as genotoxic, hormonal and enzymatic effects in mammals.
In her ruling, Judge Kapetan wrote:
“…the Labor Code listing mechanism does not constitute an unconstitutional delegation of authority to an outside agency, since the voters and the legislature have established the basic legislative scheme and made the fundamental policy decision with regard to listing possible carcinogens under Proposition 65…”
OEHHA also proposed a No Significant Risk Level (NSRL) for glyphosate of 1100 micrograms t per day, determining that exposures below that level would be given “Safe Harbor” and would be exempt from the warning requirement.
Wisner Baum submitted a public comment highlighting the various issues with the NSRL and urged OEHHA to consider epidemiological literature, additional animal bioassays, and the carcinogenicity of the Roundup formulation actually used by consumers.
Some advocates wanted to see a California glyphosate warning on all bottles of Roundup and other glyphosate herbicides if not an outright ban.
Monsanto argued that an unpublished study (which showed no evidence of link between glyphosate and cancer) had not been disclosed to IARC and would have lowered the classification if IARC had considered the study results in its final evaluation.
The study suffered from fundamental problems, which rendered it far from determinative on the issue of causation. IARC only considers published, peer-reviewed literature, and the study was not published (most likely due to its flaws).
Proposition 65 prohibits a person in the course of doing business from knowingly and intentionally exposing any individual to a chemical that has been listed as known to the State of California to cause cancer or reproductive toxicity, without first giving clear and reasonable warning to such individual. However, reasonable warning is not applicable when exposures are “insignificant.”
Based upon a single mouse diet study, OEHHA proposed a No Significant Risk Level (NSRL) for glyphosate of 1,100 micrograms per kilogram of body weight per day, meaning that any level of glyphosate exposure below the NSRL would not require a warning. There are several scientific, legal, and public health issues raised by the proposed NSRL, which provides a Safe Harbor exemption from Prop 65’s warning requirement.
One rodent diet exposure study is not enough to ensure safe exposure levels for glyphosate. OEHHA should have considered additional animal studies, accounting for variable exposure doses used in studies which observed tumor incidence and the growth of lymphomas at significantly lower doses than the single rodent diet exposure study OEHHA relied upon.
The following rodent studies found incidences of tumor development:
* EPA Glyphosate Issue Paper 2016 page 81
** EPA Glyphosate Issue Paper page 74
*** EPA Glyphosate Issue Paper page 75
In addition to the above studies, eight additional tumor sites were found in previously unavailable data in several key animal studies related to glyphosate carcinogenicity. This data, which was not available to IARC when the agency issued its glyphosate report, further bolsters the original carcinogenicity findings and highlights the need for a proper California glyphosate warning.
Glyphosate kills weeds by interfering with the “shikimate pathway,” a metabolic sequence that synthesizes vital amino acids. Glyphosate disrupts the shikimate pathway by interfering with 5-enolpyruvylshikimate-3-phosphate (EPSP), an enzyme that governs aromatic amino acid formation in higher plants, bacteria and fungi.
While Monsanto’s current Roundup® label says glyphosate targets “an enzyme found in plants but not in people or pets,” EPSP is, in fact, present in many beneficial bacteria that inhabit human mucous membranes, skin, and gut. The current Roundup label disregards the millions of bacteria, fungi, and other microorganisms in or on human mucous membranes, skin, and the gut that rely upon the shikimate pathway glyphosate disrupts. When glyphosate interferes with the microbiota cells that regulate numerous biological processes, serious health risks follow, including lymphomas.
Call (310) 207-3233 today to speak with our Roundup lawyers at Wisner Baum. From our offices in Los Angeles, we serve clients nationwide.
"Wisner Baum gave exceptional attention to all aspects of the case, detailed inquiry, and tenacious overview of all the information submitted. The paralegals are efficient and diligent. I was completely surprised to find an empathic personal message to take care of my own health during the challenging time of being a full-time caretaker.*"
In May of 2019, the jury in the case of Pilliod et al. v, Monsanto Company ordered the agrochemical giant to pay $2.055 billion in damages to the plaintiffs, Alva and Alberta Pilliod, a Bay Area couple in their 70s. R. Brent Wisner served as co-lead trial attorney for the Pilliods, delivering the opening and closing statements and cross-examining several of Monsanto’s experts. Wisner Baum managing shareholder, Michael Baum and attorney Pedram Esfandiary also served on the trial team in the Pilliod case.
The judge later reduced their award to $87M. Monsanto appealed the Pilliod’s verdict which the California Court of Appeal for the First Appellate District denied on August 9, 2021. Monsanto then requested the California Supreme Court review the appeal’s court decision, which the court denied on Nov. 17, 2021. Monsanto (Bayer) then submitted a petition for a writ of certiorari with the U.S. Supreme Court which SCOTUS denied on June 27, 2022, allowing the final judgment of $87M to remain intact.
$289.2 million jury verdict in Monsanto Roundup trial
Wisner Baum co-represented Dewayne “Lee” Johnson in the first Roundup cancer lawsuit to proceed to trial. On Aug. 10, 2018, a San Francisco jury ordered Monsanto to pay $39.25 million in compensatory damages and $250 million in punitive damages to Mr. Johnson, a former groundskeeper who alleged exposure to Monsanto’s herbicides caused him to develop terminal non-Hodgkin lymphoma.
Months after the jury verdict, the judge overseeing the trial reduced the punitive damages to $39.25 million. Mr. Johnson decided to accept the remittitur, bringing the adjusted amount awarded to Mr. Johnson $78.5 million.
Monsanto (Bayer) appealed the verdict and Johnson cross appealed. On July 20, 2020, the First Circuit Court of Appeals upheld the verdict against Monsanto but reduced Mr. Johnson’s award to $20.5 million. The company chose not to take the case to the U.S. Supreme Court, ending the litigation.
In 2016, Wisner Baum attorney Timothy A. Loranger and six other attorneys in the Plaintiffs’ Management Committee were able to secure a $265 million settlement for victims of the 2015 Amtrak 188 derailment in Philadelphia, one of the largest in the U.S. for 2016.
