The Courts against Proposition 65

A federal judge has frozen plans to require all products containing the widely popular herbicide glyphosate to display a Proposition 65 warning in a landmark ruling that could signal the turning of the tide for California's nanny-state regulations.  The decision by Federal District Judge William Shubb represents a significant blow to both to the much maligned Proposition 65 and the organization that accounts for so many of its listings, the International Agency for Research on Cancer (IARC).

Shubb's ruling is a major victory for states' rights – due to the size of California's economy, its overregulation spills over into other jurisdictions – and for farmers' groups around the country who had pushed back against California's imposition of these costly and misleading warnings.  Shubb has struck another nail in the coffin of Proposition 65, a law so universally detested that even the leftist L.A. Times came out against it.

A lengthy legal wrangle

Around 1.8 million tons of glyphosate has been used across the U.S. since 1974.  Such a commonly used chemical has obviously demanded a rigorous health and safety assessment.  It has repeatedly been certified as non-threatening to humans from regulatory bodies all over the world, including in the U.S., Europe, Canada, Australia, New Zealand, and Japan.

The controversy over the substance arose when IARC – a semi-autonomous branch of the World Health Organization (WHO) based in Lyon, France, which was recently slammed by House Science Committee members for its "manipulation of scientific data" and "shoddy work" – found it "probably carcinogenic" to humans.  Despite the fact that this remains the only major study to reach such a conclusion, IARC's ruling meant that glyphosate was automatically added to California's Proposition 65 list, a lengthy catalogue of supposed carcinogens.  Under California state law, any product containing these substances must display a warning stating that the product in question "is known to the State of California to cause cancer," resulting in a proliferation of inaccurate and scare-mongering signs all over the Golden State.

The new classification had several immediate implications for glyphosate.  Firstly, products containing the herbicide would have been required to carry a Proposition 65 label beginning July 7, 2018.  In addition to this onerous burden, no fewer than 184 plaintiffs sprang up across America, accusing herbicide-manufacturers of giving them cancer.  Federal judge Vince Chhabria is currently determining whether these plaintiffs' cases can proceed, a decision hinging on whether a link between glyphosate and cancer has been "tested, reviewed and published and is widely accepted in the scientific community."

Judge Shubb's ruling means that, while glyphosate will remain listed for now under Proposition 65, glyphosate products will no longer have to carry warning labels starting this July.  It also makes it difficult for Judge Chhabria to find that the connection between glyphosate and cancer is "widely accepted in the scientific community."

IARC: Notoriously unreliable

The rationale behind Judge Shubb's ruling?  According to Shubb, a label that decries glyphosate as "known to cause cancer" would be "misleading at best" and both "factually inaccurate and controversial."  This is because in over 40 years of research, the IARC study is the only one to have found it dangerous to human health.  It's also because the study itself is mired in controversy.

Influential scientist Aaron Blair withheld key information from the IARC panel studying glyphosate.  Consequently, the IARC did not take into consideration the most comprehensive investigation into the long-term effects of glyphosate on farmers, which found zero evidence linking glyphosate with cancer.

Further muddying the water, there were considerable discrepancies between two drafts of IARC's glyphosate report.  Someone at IARC redacted portions of the report disagreeing with the organization's eventual conclusions.  The toxicologist in charge of reviewing the data has since claimed he does not know who made the edits, or why and when.  His story is difficult to verify, since IARC unusually discourages the experts working on its reports from retaining drafts or discussing their work.

The perils of Proposition 65

Given these critical issues with IARC's review process, as well as its conclusions that are diametrically opposed to those of the rest of the scientific community, Judge Shubb deemed it prudent to freeze the institution of warning labels.  His decision has made the plaintiffs in the case quietly and cautiously optimistic that the listing itself will also be overturned in due course.  Regardless of the final outcome, this controversy is yet another thorn in the side of Proposition 65 itself, which has been the subject of intense debate in recent years.

Recent attempts to impose Prop 65 signage on commodities as commonplace as coffee and fast food have prompted disbelief and derision from critics, who claim that the overabundance of warning notices is having numerous detrimental effects on society.  In addition to the carbon footprint caused by producing millions of plastic, paper, and metal signs, a toxic litigation racket has sprung up in the state.  Private enforcers of Proposition 65 requirements, colloquially known as "bounty hunters," have crafted a lucrative career around extorting businesses that have failed to comply with the warning rules.  In 2013 alone, these litigious mercenaries collected a cool $15 million.  Business is booming in California, but for all the wrong reasons.

Finally, and perhaps most concerning of all, the proliferation of warning signs all over California has had the exact opposite effect of what was originally intended.  Instead of reacting with caution and concern to a Proposition 65 notice, desensitized citizens have become jaded by their omnipresence in gas stations and garages, restaurants, and liquor stores.  The cotton wool intended to protect the everyman is in danger of blinding his vision and smothering him with its ubiquity.  Judge Shubb's ruling, therefore, might represent a victory not just for the farmers, the states, and scientific integrity, but for common sense itself.

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