Prop 65 Victory For Chemical Industry In Monsanto Case Has Been Appealed


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On June 22, Judge William B. Shubb of the US District Court for the Eastern District of California granted Monsanto’s motion for summary judgment and imposed a permanent injunction on the enforcement of Proposition 65 for glyphosate (the active ingredient in Roundup) in the closely followed case National Association of Wheat Growers v. Becerra.  The ruling was important to many in the chemicals and agricultural world, and we provided an Expert Analysis of the district court decision in Law360.

However, as we expected, the California Attorney General appealed the decision to the Ninth Circuit Court of Appeals on September 9, 2020 (Case No. 20-16758), with the main issue on appeal being whether the First Amendment bars the State of California from requiring a Prop 65 Warning.

While mandatory to file, the Attorney General’s September 17, 2020 Mediation Questionnaire provides that he “believes the content and method of delivering such a [Prop 65] warning are both issues susceptible to a mediated resolution.”  This may mean the Attorney General could be considering a mediated agreement in the case if possible.  As we stated in our Law360 analysis, if the district court decision is upheld in the Ninth Circuit, it will set a significant precedent in the Prop 65 world and deal a huge blow to the State of California.

For now, we must wait while the parties go through the appeals process.  We will continue to monitor this case to its final resolution and provide reader updates.

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