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By Lynn L. Bergeson, Lisa R. Burchi, and Margaret R. Graham

A tentative ruling issued January 26, 2017, in Monsanto Company v. Office of Environmental Health Hazard Assessment, et al., Case No. 16 CE CG 00183, by the Superior Court of California, County of Fresno, granted the Office of Environmental Health Hazard Assessment’s (OEHHA or Defendant) motion for judgment on the pleadings as to Monsanto Company’s (Monsanto) petition and complaint, and sustained the demurrers to Monsanto’s petition and complaint (Sierra Club) and California Citrus’ complaint in intervention, for failure to state facts sufficient to constitute a cause of action.  The tentative ruling was issued prior to the hearing date of January 27, 2017.  If this ruling is made final, Monsanto’s case will be dismissed, but Monsanto has stated it will challenge the tentative ruling. 

Monsanto’s complaint alleged various violations committed by OEHHA under the U.S. and California Constitutions in listing glyphosate on the Proposition 65 (Prop 65) list of chemicals that are known to the state to cause cancer.  Monsanto argues, for example, that OEHHA engaged in an unconstitutional delegation of its rulemaking authority to the World Health Organization’s (WHO) International Agency for Research on Cancer (IARC) when it used the IARC’s classification of glyphosate as “probably carcinogenic to humans” as the basis for the Prop 65 listing.  Specifically, Monsanto argued that the Labor Code listing mechanism upon which the glyphosate listing is based is unconstitutional because OEHHA “cedes the basis of its regulatory authority to an unelected and non-transparent foreign body that is not under the oversight or control of any federal or state government entity.”  The five constitutional violations that Monsanto claimed are:  (1) a violation of the due process clauses of the California and U.S. Constitutions; (2) a violation of free speech under the California and the U.S. Constitutions; (3) a violation of the Guarantee Clause of the U.S. Constitution; (4) a violation of the California Constitution regarding the naming/identifying of IARC (Article II, Section 12); and (5) a violation of the California Constitution through empowering IARC to make laws applicable to California (Article IV, Section 1).

The tentative ruling details the court’s arguments concerning Monsanto’s failure to state facts/insufficiently allege its claims for each of the claims.  Concerning the first allegation on the unconstitutional delegation of authority, the court stated “there is no support for Monsanto’s conclusion that the OEHHA has unconstitutionally delegated its rulemaking authority to the IARC,” since, in part, “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, and then allowed the IARC to make the highly technical fact-finding decisions with regard to which specific chemicals would be added to the list.”  The court also found no support for any of Monsanto’s other claims.  As of February 1, 2017, the ruling was not yet made final.