More than 50 agriculture groups signed a letter to President Biden this week.
The groups are upset that the U.S. Solicitor General's office asked the U.S. Supreme Court not to review a case involving glyphosate.
"This position, a stunning reversal from numerous past administrations, Democratic and Republican alike, poses great risks to our science-based regulatory system and global food systems," the authors wrote. "The product label at issue in this case involves the herbicide glyphosate. Nearly every pesticide regulatory body in the world, including the U.S. Environmental Protection Agency, has conducted robust scientific evaluations of glyphosate and reached the conclusion it is not a carcinogen and can be safely used."
The blog is about to get "legal-y" for a minute, so bear with me.
A California man — not a farmer — developed non-Hodgkin's lymphoma, a serious cancer of the immune system, according to documents filed in the case. Non-Hodgkin's lymphoma is frequently referred to as an "idiopathic" disease, which means doctors don't know how it's caused.
In 2015, a working group for the International Agency for Research on Cancer (IARC), a wing of the WHO, declared glyphosate "probably carcinogenic" based on statistical analysis of 1,000 different studies involving cancer and agriculture.
The combination of a disease with no known cause and a chemical with a new possible link to cancer prompted lawsuits; more than 5,000 people have sued over glyphosate exposure in the federal court system alone. All of the lawsuits have been moved to Northern California.
Previously, the EPA had concluded that while glyphosate had caused tumors in mice, it was probably not carcinogenic in humans. In subsequent reviews, it declared that glyphosate was not carcinogenic.
The jury heard the evidence on both sides, and ultimately awarded the man $80 million, which was subsequently reduced to about $25 million by the federal judge. Following that ruling, the EPA issued a letter saying California couldn't affix a label saying glyphosate possibly causes cancer because it would then be liable for incorrectly labeling the product, or "misbranding," the product, which isn't allowed by federal law.
Monsanto — the maker of glyphosate — was understandably upset by this outcome, and appealed the ruling to the U.S. 9th District Court of Appeals. The 9th District backed up what the federal judge had allowed, so Monsanto has taken the issue up with their legal supervisors. Monsanto was eventually acquired by Bayer, who holds the patents currently.
Monsanto and a host of other groups who filed friend-of-the-court briefs argue the judge never should have allowed the IARC ruling as evidence because it didn't meet the standards of scientific evidence. They also argue that California's decision under state law to include a label about possibly causing cancer would put users in an impossible position of trying to follow state and federal rules that contradict each other. Federal regulations should prevail, Monsanto and others argue.
The Solicitor General — who represents the U.S. government to the Supreme Court — was asked by the justices to weigh in on the case.
In the office's response, officials argue that the federal law governing the EPA's label-making authority doesn't prohibit California from affixing requirement to the federally-generated label. The EPA, since the change from the Trump to the Biden administrations, no longer believes that California's label would be a form of misbranding. EPA rules are relatively narrow and not designed to assess the risks from long-term exposures over a number of years, the Solicitor General argues.
"EPA guidance allows a manufacturer to propose state-mandated chronic-risk warnings, such as Proposition 65 warnings, so long as the state-law terminology does not conflict with language in the EPA-approved label," the brief's authors wrote.
These facts contain enough space for multiple hard truths. California should be able to warn its residents if something could potentially harm them. California voters should be allowed to require their government to do so. Farmers deserve economic security. Monsanto should be regulated by science, not populist whim. Sufferers of non-Hodgkin's Lymphoma should should know the cause of their disease, and we all need to know how to prevent and cure it, if possible.
If I feel a sudden pain in my ankle while walking down some stairs, I'm not going to the EPA or the 9th Circuit to figure out what caused it. I'm going to the hospital. If the first doctor tells me that my ankle sprain was caused by aliens, I'll seek a second opinion. If the new doctor says there's no evidence that tigers are responsible for my ankle pains, that's probably true, but I'll likely need a third opinion to get out of the mess.
So what is the doctor's opinion? What does the medical research actually say? It's mixed, and we don't have access to all of it.
The IARC uses publicly available peer-reviewed data only. The EPA looked at that data, but also at studies furnished by the industry itself. Those studies are protected as trade secrets, meaning Monsanto can show them to the EPA, but not you or me.
For example, both the EPA and IARC used data from the National Institutes of Health Agricultural Health Survey (AHS), which involves over 50,000 agriculture workers in two states. The IARC says the AHS data is valid and the study is well-researched, but it's lack of emphasis on cancer diagnoses and short-interval follow up means it's only one study among many, according to the IARC.
Since the IARC made it's initial ruling, the EPA has re-affirmed its own conclusion, and some statistical analysis has confirmed the IARC's ruling, which was only ever intended as the first step in a public health review.
Meanwhile, even the dubious but omnipresent medical authority Web M.D. says more research is required to determine whether or not glyphosate exposure is a risk factor for non-Hodgkin's lymphoma.
Bottom line: the science is still out. So while judges, juries, and the rest of us don't have firm evidence that glyphosate does cause cancer, we also don't have firm evidence that it doesn't, either (at least, not to the point of scientific certainty or even probability ... we'll never have it to the point of philosophical certainty). As long as Monsanto's data is protected from the public, we won't be able to make a call on the science. We're thus in the position of having to trust two familiar bogeyman of the agricultural landscape — a large corporation and the EPA — to have our best interests at heart.
Discovery from those other 5,000 cases might turn up a flame, more smoke, or nothing at all.
The next road sign in the Supreme Court case is June 9, when the justices will meet to determine what to do next. The conference could end with Supreme Court review, but the statistics suggest it probably won't (the Supreme Court receives thousands of requests to review cases every year, and hears a small fraction of them). We ought to all know better than to handicap the odds of any outcome.
It does seem like the public doesn't have enough risk or absolution of risk to merit the full weight of a Supreme Court ruling, especially given the staying power a full decision would possess.
That would be bad news for Monsanto, though not as bad as it is for farmers and other consumers, who will likely bear the cost of any settlement of the issue if the current ruling sticks.
It's mixed news for sufferers of non-Hodgkin's lymphoma, and will remain so until or if a cure or cause is found.
It would be good news for Californians, who will retain the ability to regulate their own economy.
It might be good news for science, which still needs time to figure out whether the statistics are an aberration, or something darker.