Case: 20-16758, 02/19/2021, ID: 12010407, DktEntry: 21, Page 1 of 31
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`No. 20-16758
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`United States Court of Appeals for the Ninth Circuit
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`NATIONAL ASSOCIATION OF WHEAT GROWERS ET AL.,
`Plaintiffs – Appellees,
`v.
`XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF
`THE STATE OF CALIFORNIA,
`Defendant – Appellant,
`AND
`LAUREN ZEISE, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF
`ENVIRONMENTAL HEALTH HAZARD ASSESSMENT,
`Defendant.
`_____________________________
`
`Appeal from the U.S. District Court
`for the Eastern District of California
`The Honorable William B. Shubb (No. 2:17-cv-02401-WBS-EFB)
`_____________________________
`
`AMICUS CURIAE BRIEF OF THE NATIONAL BLACK FARMERS
`ASSOCIATION IN SUPPORT OF APPELLANT AND REVERSAL
`_____________________________
`
`Thomas C. Goldstein
`Paul J. Napoli (NY 2513141)
`Eric F. Citron
`Hunter J. Shkolnik (NY 2031458)
`Charles Davis
`NS PR LAW SERVICES, LLC
`Daniel Woofter
`270 Muñoz Rivera, Suite 201
`Molly Runkle
`Hato Rey, Puerto Rico 00918
`GOLDSTEIN & RUSSELL, P.C.
`pnapoli@nsprlaw.com
`hunter@napolilaw.com
`7475 Wisconsin Avenue, Suite 850
`Phone: (212) 397-1000
`Bethesda, MD 20814
`Fax: (312) 610-5680
`(202) 362-0636
`
`
`
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`
`
`

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`Case: 20-16758, 02/19/2021, ID: 12010407, DktEntry: 21, Page 2 of 31
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`Christopher L. Schnieders
`(MO 57725)
`NAPOLI SHKOLNIK, PLLC
`6731 W. 121st Street, Suite 201
`Overland Park, KS 66209
`cschnieders@napolilaw.com
`Phone: (913) 246-3860
`Fax: (312) 610-5680
`
`
`
`Benjamin L. Crump
`FL Bar #72583
`TN Bar #038054
`Washington D.C. Bar #1552623
`BEN CRUMP LAW
`122 S. Calhoun St. Tallahassee,
`FL 32301
`850-888-4140
`Court@bencrump.com
`
`Counsel for Amicus Curiae
`
`
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`

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`CORPORATE DISCLOSURE STATEMENT
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus cu-
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`riae National Black Farmers Association is a non-profit organization that
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`has not issued shares or debt securities to the public. It has no parent
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`companies, and no publicly held company has any form of ownership in-
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`terest in it.
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`i
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`TABLE OF CONTENTS
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`CORPORATE DISCLOSURE STATEMENT............................................. i 
`TABLE OF AUTHORITIES ..................................................................... iii 
`INTEREST OF AMICUS CURIAE ............................................................ 1 
`SUMMARY OF THE ARGUMENT ........................................................... 3 
`ARGUMENT ............................................................................................... 6 
`I. 
`NBFA’s Members Rely on States Like California to
`Warn Them About Carcinogenic Pesticides ............................ 6 
`a. 
`The Scientific Basis for the Proposition 65
`Warning ........................................................................... 6 
`Ruling for Appellees Would Exacerbate the
`Inequalities Experienced by NBFA’s Members ........... 12 
`II.  The Correct Solution Here Is More Speech, Not Less .......... 16 
`III.  Label Warnings Ask Very Little of Monsanto ...................... 19 
`CONCLUSION ......................................................................................... 23 
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`b. 
`
`ii
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`TABLE OF AUTHORITIES
`Cases 
`Hustler Magazine, Inc. v. Falwell,
`485 U.S. 46 (1988) ................................................................................. 16
`Johnson v. Monsanto Co.,
`52 Cal. App. 5th 434 (2020) ............................................................... 9, 10
`Nat’l Ass’n of Wheat Growers v. Becerra,
`468 F. Supp. 3d 1247 (E.D. Cal. 2020) ................................................... 7
`Nat’l Inst. of Family & Life Advocates v. Becerra,
`138 S. Ct. 2361 (2018) ........................................................................... 18
`Pigford v. Glickman,
`185 F.R.D. 82 (D.D.C. 1999) ............................................................ 13, 14
`Other Authorities 
`About Proposition 65, OEHHA, https://bit.ly/2ZwIuIO (last
`visited Feb. 13, 2021) ............................................................................ 11
`About Us, Nat’l Black Farmers Assoc., https://bit.ly/3d33VZY
`(last visited Feb. 11, 2021) .............................................................. 12, 13
`Patricia Cohen, $2 Billion Verdict Against Monsanto Is Third to
`Find Roundup Caused Cancer, N.Y. Times (May 13, 2019),
`https://nyti.ms/2NmqApq ................................................................ 10, 11
`Compl., Nat’l Black Farmers Ass’n v. Monsanto Co., No. 4:20-
`cv-01145-SRC (E.D. Mo. Aug. 26, 2020), ECF 1 ...................... 20, 21, 22
`Congressional testimony of John W. Boyd, Jr., Founder and
`President, NBFA, available at https://bit.ly/2ZawuwG ....................... 13
`Baum Hedlund, Where Is Glyphosate Banned?,
`https://bit.ly/3jEWUji (last visited Jan. 11, 2021) .................................. 8
`IARC Monographs Vol. 112: evaluation of five organophosphate
`insecticides and herbicides, IARC (Mar. 20, 2015),
`https://bit.ly/3jJvtFk ................................................................................ 8
`Sam Levin, Monsanto Found Liable for California Man’s
`Cancer and Ordered to Pay $80m In Damages, The Guardian
`(Mar. 27, 2019), https://bit.ly/3d34tiu ................................................... 10
`
`iii
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`Sam Levin, The Man Who Beat Monsanto: “They Have to Pay
`for Not Being Honest”, The Guardian (Sept. 26, 2018),
`https://bit.ly/3aYoXXe ............................................................................. 9
`Summer Sewell, There were nearly a million black farmers in
`1920. Why have they disappeared?, The Guardian (Apr. 29,
`2019), https://bit.ly/3rKAIHv ................................................................ 14
`Hiroko Tabuchi & Nadja Popovich, Two Biden Priorities,
`Climate and Inequality, Meet on Black-Owned Farms, N.Y.
`Times (Jan. 31, 2021), https://nyti.ms/377GE5r .................................. 14
`Verdict Form, Johnson v. Monsanto Company, No. CGC-16-
`550128 (Cal. Super. Ct., Cty. of S.F., Aug. 10, 2018), available
`at https://bit.ly/3b0OUWd ....................................................................... 9
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`INTEREST OF AMICUS CURIAE1
`The National Black Farmers Association (“NBFA”) is a nationwide,
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`non-profit organization that supports the interests of Black and minority
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`farmers. NBFA does so by bringing litigation against the government
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`and private entities to combat discriminatory practices against minority
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`farmers, and by lobbying Congress to protect Black farmers from the ef-
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`fects of decades of systemic racism in farming. NBFA now has over
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`100,000 members, including full-time and part-time farmers, land and
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`timber owners, and concerned citizens in forty-two states.
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`A substantial proportion of NBFA’s members have been exposed to
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`and potentially injured by Roundup®, and its active ingredient, glypho-
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`sate. Indeed, some have already developed non-Hodgkin’s lymphoma
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`from their Roundup® use, and many fear that they will soon develop
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`symptoms. The exposure is ongoing and will therefore get worse both for
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`1 Pursuant to Federal Rule of Appellate Procedure 29, NBFA submits
`this brief in support of defendant-appellant Xavier Becerra, in his official
`capacity as Attorney General of the State of California. All parties have
`consented to the filing of this brief. No party’s counsel authored this brief
`in whole or in part, and no party or party’s counsel made a monetary
`contribution to fund the preparation or submission of this brief. No per-
`son or entity other than amicus curiae or its counsel made a monetary
`contribution to the preparation or submission of this brief.
`
`1
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`members who have already been exposed and for those likely to be ex-
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`posed in the future. Accordingly, NBFA’s members who have not yet be-
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`come sick or have not yet been exposed will be more likely to develop
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`cancer absent adequate warnings on Roundup® products.
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`NBFA has thus brought suit in the Eastern District of Missouri as-
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`serting design defect and failure to warn claims, seeking to either require
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`clear warning labels on Roundup® products consistent with the findings
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`of the International Agency for Research on Cancer (“IARC”), or to re-
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`move Roundup® products from the marketplace entirely. Nat’l Black
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`Farmers Ass’n v. Monsanto Co., No. 4:20-cv-01145-SRC (E.D. Mo. Aug.
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`26, 2020). Although that litigation is continuing and has now been con-
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`solidated before the MDL court in San Francisco, NBFA has a substantial
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`interest in California protecting NBFA’s members by seeking to require
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`clear warning labels on Roundup® products under Proposition 65. That
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`is because, absent some change in the status quo, plaintiffs’ suit here and
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`the district court’s holding that Proposition 65’s warning requirement as
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`to glyphosate violates the First Amendment will likely result in further
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`injury and death for NBFA’s members.
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`2
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`SUMMARY OF THE ARGUMENT
`I. NBFA’s members rely on States to warn them about carcinogenic
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`pesticides and herbicides, as California attempted to do here. There is
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`weighty evidence demonstrating the carcinogenic nature of Roundup®
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`products, including the IARC findings, actions of countries around the
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`world, and three substantial jury awards in the United States.
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`And because of the long-lasting effects of generations of racial dis-
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`crimination, a ruling for appellees here would fall especially hard on
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`NBFA’s members. Black and minority farmers have faced long-docu-
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`mented systemic racism and discrimination, often at the hands of the
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`federal government. That discrimination has resulted in the devastation
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`of the Black farming community and enormously disparate income for
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`those Black farmers still left. NBFA was founded to fight against those
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`effects, and the organization continues that important work today.
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`But—due to stubborn systemic inequalities—poor, rural, and mi-
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`nority farmers will often be unable to obtain and absorb the meaning of
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`scientific studies on glyphosate and then take the steps necessary to pro-
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`tect themselves—particularly in the face of the much-better-funded effort
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`of companies like the plaintiffs here to push out a contrary narrative.
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`The State thus plays a critical role in warning the public, including
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`NBFA’s members, that Roundup causes hematopoietic cancers like non-
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`Hodgkin’s Lymphoma through efforts like Proposition 65 and its imple-
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`menting regulations.
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`II. Appellees’ position that the First Amendment here requires re-
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`ducing access to truthful information is wrong and should be rejected.
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`Companies like Bayer and Monsanto will always claim that cancer warn-
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`ings are “misleading” because the scientific method constantly requires
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`partial judgments and conclusions that can later be upset by further
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`data. But the First Amendment’s solution is more speech, not less. The
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`plaintiffs here remain free to launch wide-ranging ad campaigns setting
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`out any truthful and non-misleading message they want to share with
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`consumers about the state of the science. But the State of California also
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`remains free to demand that the limited warning required by Proposition
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`65 reach the users of the products that Bayer and Monsanto wish to con-
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`tinue marketing to its citizens, so that those citizens will have some way
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`to get the whole story.
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`III. Ultimately, Proposition 65 asks very little of Monsanto. The
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`current reality is that (1) state tort and products liability law in many or
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`most states already permits removing Roundup® from shelves entirely if
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`it is a proven carcinogen; and likewise, (2) Monsanto’s actions are sanc-
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`tionable in every state to the tune of many millions of dollars when plain-
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`tiffs can prove their case to a jury, as has already successfully happened
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`three times. NBFA’s view is that Monsanto has created a vicious cycle of
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`reliance on its products, resulting in an ever-increasing use of dangerous
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`chemicals, including cancer-causing Roundup®, and that the best way to
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`stop this cycle of harm and reliance is to force Monsanto to remove its
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`products from the market or make them safe. And, importantly, no one
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`doubts that state law can take that step under the First Amendment.
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`Appellees thus need to explain why California’s warning requirement—
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`which imposes far less burden on Monsanto—cannot be sustained on the
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`basis of the same evidence that already has cost Monsanto tens of mil-
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`lions in tort compensation and convinced a neutral expert body that it
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`causes hematopoietic cancers. They cannot do so; this Court should hold
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`that their position that the First Amendment prohibits California from
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`requiring a simple, truthful message consistent with the findings of a re-
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`spected international organization and multiple civil juries is obviously
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`incorrect.
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`ARGUMENT
`I. NBFA’s Members Rely on States Like California to Warn
`Them About Carcinogenic Pesticides.
`The district court below failed to appreciate the serious conse-
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`quences of its decision, particularly for Black and minority farmers like
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`those represented by NBFA. The reality on the ground is that NBFA
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`members rely on federal and state authorities to provide easy-to-under-
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`stand warnings so that farmers can comprehend the risks they face when
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`using certain pesticides. The IARC has already concluded that the active
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`ingredient in Roundup® products is carcinogenic, yet Monsanto contin-
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`ues to resist commonsense warnings on those products. Should this
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`Court uphold the district court’s decision, it will aggravate this serious
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`failure to warn farmers who lack the means or ability to follow scientific
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`studies and reports on the cancer-causing nature of Roundup® products.
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`a. The Scientific Basis for the Proposition 65 Warning
`Contrary to the district court’s holding, there is a serious scientific
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`basis for believing that Roundup® products cause cancer. Indeed, at this
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`point, it is fair to say that Roundup® causes cancer, in much the same
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`way we now say that smoking causes lung cancer: Not everyone who
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`smokes develops lung cancer—indeed, the overwhelming majority of even
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`very heavy smokers do not die of lung cancer—and it often takes decades
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`for the disease to manifest. And some scientists can no doubt dispute the
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`causal evidence or maintain that other causes predominate without vio-
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`lating their conscience. But it is nonetheless fair for regulators to require
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`warnings based on what the existing data shows, and the existing data
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`indicates here that Roundup® and its active ingredient glyphosate are
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`indeed carcinogenic.
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`Apparently finding itself more competent to evaluate the carcino-
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`genic nature of glyphosate and Roundup® than the IARC and California’s
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`Office of Environmental Health Hazard Assessment (“OEHHA”), the dis-
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`trict court concluded that “the great weight of evidence indicates that
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`glyphosate is not known to cause cancer,” and therefore that the Propo-
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`sition 65 warning would be “misleading.” Nat’l Ass’n of Wheat Growers
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`v. Becerra, 468 F. Supp. 3d 1247, 1260 (E.D. Cal. 2020). That conclusion
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`is simply false.
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`In March 2015, the IARC, a widely respected agency of the World
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`Health Organization, issued an evaluation of several herbicides, includ-
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`ing glyphosate. IARC Monographs Vol. 112: evaluation of five organo-
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`phosphate
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`insecticides and herbicides, IARC
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`(Mar. 20, 2015),
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`https://bit.ly/3jJvtFk. That evaluation was based, in part, on studies of
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`human exposure to glyphosate in several countries, tracked over time
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`since 2001. Id. The IARC classified glyphosate as a Group 2A herbicide,
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`meaning that it is “probably carcinogenic to humans.” Id. In particular,
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`it concluded “there was limited evidence of carcinogenicity in humans for
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`non-Hodgkin lymphoma.” Id.
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`Both before and after IARC announced its glyphosate assessment,
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`several countries around the world instituted actual bans on the sale of
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`Roundup® and other glyphosate-containing herbicides. The following
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`countries or their localities have either outright bans on these products,
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`have imposed restrictions on them, or have issued statements of an intent
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`to do so: Argentina, Australia, Austria, Bahrain, Barbados, Belgium, Ber-
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`muda, Brazil, Canada, Columbia, Costa Rica, Czech Republic, Denmark,
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`El Salvador, Fiji, France, Germany, Greece, India, Italy, Kuwait, Luxem-
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`bourg, Malawi, Malta, Mexico, Netherlands, New Zealand, Oman, Portu-
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`gal, Qatar, St. Vincent and the Grenadines, Saudi Arabia, Scotland, Slo-
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`venia, Spain, Sweden, Thailand, United Arab Emirates, United King-
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`dom, and Vietnam. See Baum Hedlund, Where Is Glyphosate Banned?,
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`https://bit.ly/3jEWUji (last visited Jan. 11, 2021).
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`Moreover, three U.S. juries have agreed with appellant that
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`Roundup® is carcinogenic. In 2018, Dewayne Johnson, a Black public-
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`school groundskeeper, became the first person to take Monsanto to trial
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`before a jury on allegations that Roundup® caused his non-Hodgkin lym-
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`phoma. Sam Levin, The Man Who Beat Monsanto: “They Have to Pay for
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`Not Being Honest”, The Guardian (Sept. 26, 2018), https://bit.ly/3aYoXXe.
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`A unanimous jury agreed, awarding Mr. Johnson $289 million in com-
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`pensatory and punitive damages. Id. That jury specifically found that
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`Roundup® products are a “substantial danger” to humans and that Mon-
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`santo failed to warn consumers of that danger. See Verdict Form, John-
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`son v. Monsanto Company, No. CGC-16-550128 (Cal. Super. Ct., Cty. of
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`S.F., Aug. 10, 2018), available at https://bit.ly/3b0OUWd.
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`On cross-appeal, the court affirmed that there was “substantial ev-
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`idence support[ing] the award of punitive damages,” including evidence
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`“from which the jury could infer that Monsanto acted with a conscious
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`disregard for public safety by discounting legitimate questions surround-
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`ing glyphosate’s genotoxic effect and failing to conduct adequate studies.”
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`Johnson v. Monsanto Co., 52 Cal. App. 5th 434, 456-57 (2020), as modi-
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`fied on denial of reh’g (Aug. 18, 2020), review denied (Oct. 21, 2020). And
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`while that court did reduce the damages awards, they still amounted to
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`over $20.5 million. Id. at 463. This suit involves the same discounting
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`of dangers for which Monsanto was rightly sanctioned before a jury of its
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`peers.
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`Likewise, in 2019, a federal jury ruled for Edwin Hardeman on sim-
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`ilar claims that Monsanto caused his non-Hodgkin’s lymphoma. Sam
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`Levin, Monsanto Found Liable for California Man’s Cancer and Ordered
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`to Pay $80m In Damages, The Guardian
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`(Mar. 27, 2019),
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`https://bit.ly/3d34tiu. That jury awarded Mr. Hardeman $80 million in
`
`damages and unanimously found that Roundup® was a “substantial fac-
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`tor” in causing his cancer. Id. That case is currently on appeal before
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`this Court. Hardeman v. Monsanto Co., No. 19-16636 (9th Cir.).
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`Finally, also in 2019, a California jury ordered Monsanto “to pay a
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`couple more than $2 billion in damages after finding that its Roundup
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`weed killer caused their cancer – the third jury to conclude that the com-
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`pany failed to warn consumers of its flagship product’s dangers.” Patricia
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`Cohen, $2 Billion Verdict Against Monsanto Is Third to Find Roundup
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`Caused Cancer, N.Y. Times (May 13, 2019), https://nyti.ms/2NmqApq.
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`Strikingly, both Mr. and Ms. Pilliod developed non-Hodgkin’s lymphoma
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`after using Roundup® on their property for decades. Id.; see also Pilliod
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`v. Monsanto Co., Alameda County Superior Court Case No. RG17862702.
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`Perhaps Monsanto has a story to tell that can chalk such develop-
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`ments—and such consistent verdicts against them—up to random
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`chance. And it is free to tell consumers that story—on television, in news-
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`papers, on Facebook, and in expensive online advertisements that follow
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`Roundup® users around the internet (provided it sticks to telling the non-
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`misleading truth). But it is obtuse to deny that there is strong evidence
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`here that Roundup® causes cancer, and that the limited warning to the
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`public Proposition 65 requires is somehow more likely to mislead them
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`than it is to inform.
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`Indeed, in light of all of this evidence, it is somewhat incredible that
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`the district court saw fit to substitute its own judgment for that of the
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`State of California and the international panel of experts on which it re-
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`lied—especially considering that 63% of California voters approved Prop-
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`osition 65 in 1986. About Proposition 65, OEHHA, https://bit.ly/2ZwIuIO
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`(last visited Feb. 13, 2021). The people of California overwhelmingly en-
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`trusted their government to inform them about hazardous, cancer-caus-
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`ing chemicals when corporations fail to do so themselves. Moreover, the
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`State is in a far better position to evaluate health risks and consequences
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`for its citizens, and courts owe due deference to the public health assess-
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`ments of state experts. And the need for state action is especially salient
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`for those farmers who otherwise are unlikely to obtain this important
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`information without state involvement.2
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`b. Ruling for Appellees Would Exacerbate the Inequalities
`Experienced by NBFA’s Members.
`A history of serious racial discrimination against Black farmers
`
`means that prohibiting California’s Proposition 65 warning would fall es-
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`pecially hard on NBFA’s members.
`
`1. NBFA was founded in 1995 by John W. Boyd, Jr., a fourth-gen-
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`eration Black farmer from Baskerville, Virginia, in the wake of repeated
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`instances of discrimination. About Us, Nat’l Black Farmers Assoc.,
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`https://bit.ly/3d33VZY (last visited Feb. 11, 2021). Ever since, NBFA has
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`been at the forefront of challenging discriminatory conduct by the U.S.
`
`Department of Agriculture and pursuing legislation for its members. For
`
`
`2 For example, it is likely that not all of NBFA’s members have access
`to safety sheets or OSHA warnings—i.e., those who work on small or fam-
`ily farms. The Proposition 65 warning thus provides an important gap-
`filling function to reach those farmers who would otherwise lack access
`to this safety information.
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`example, the organization’s claims of discriminatory loan and subsidy
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`distribution have since been acknowledged by the USDA. Id. Black
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`farmers were routinely denied government assistance at the same level
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`as white farmers, leading to bankruptcies and foreclosures. See Congres-
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`sional testimony of John W. Boyd, Jr., Founder and President, NBFA,
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`available at https://bit.ly/2ZawuwG.
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`In the 1990s, Black farmers pursued a class action civil rights strat-
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`egy in the courts, resulting in the “largest-ever civil rights class action
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`settlement in American history.” About Us, NBFA, supra. In Pigford v.
`
`Glickman, a U.S. District Court recognized that “[f]or decades . . . the De-
`
`partment of Agriculture and the county commissioners discriminated
`
`against African American farmers when they denied, delayed or other-
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`wise frustrated the application of those farmers for farm loans and other
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`credit and benefit programs.” 185 F.R.D. 82, 85 (D.D.C. 1999), aff’d, 206
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`F.3d 1212 (D.C. Cir. 2000), and enforcement denied sub nom. Pigford v.
`
`Schafer, 536 F. Supp. 2d 1 (D.D.C. 2008). The court continued: “These
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`events were the culmination of a string of broken promises that had been
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`made to African American farmers for well over a century.” Id. To get a
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`sense of the “devastating impact on African American farmers . . . . Ac-
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`cording to the Census of Agriculture, the number of African American
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`farmers ha[d] declined from 925,000 in 1920 to approximately 18,000 in
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`1992.” Id. at 87.
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`It is hardly surprising, then, that the structural consequences of
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`this targeted racial discrimination continue today. For example, “of the
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`country’s 3.4 million total farmers, only 1.3%,” are Black, and Black farm-
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`ers “own a mere 0.52% of America’s farmland. By comparison, 95% of US
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`farmers are white.” Summer Sewell, There were nearly a million black
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`farmers in 1920. Why have they disappeared?, The Guardian (Apr. 29,
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`2019), https://bit.ly/3rKAIHv. Further, Black farmers on average “make
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`less than $40,000 annually, compared with over $190,000 by white farm-
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`ers.” Id. And “Black farmers obtained only about $11 million in micro-
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`loans designed for small farmers in 2015, or less than 0.2 percent of the
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`roughly $5.7 billion in loans administered or guaranteed by the Agricul-
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`ture Department that year.” Hiroko Tabuchi & Nadja Popovich, Two
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`Biden Priorities, Climate and Inequality, Meet on Black-Owned Farms,
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`N.Y. Times (Jan. 31, 2021), https://nyti.ms/377GE5r.
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`2. The district court’s holding is wrong on the law, as the State
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`persuasively argues. But here, NBFA hopes to stress to this Court the
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`truly disparate effects a holding for appellees would have on Black and
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`minority farmers.
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`NBFA’s members acutely feel the harms caused by Roundup® and
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`Monsanto, including the lack of warning labels. Many of NBFA’s mem-
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`bers are rural Black farmers. Due to long-documented disparities in lit-
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`eracy and education rates, rural Black farmers have been and continu-
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`ously are harmed by the absence of a plain, clear warning on Roundup®
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`products. Moreover, many NBFA members have no reliable connection
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`to the Internet or ready sources on the complex, yet critical information
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`farmers need to protect themselves. Monsanto is clearly uninterested in
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`resolving this problem itself. But such situations are precisely the time
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`States should most step in to protect its citizens, just as California has
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`attempted to do here. Appellees’ effort to stop California from doing so
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`will disproportionately harm NBFA members, a result this Court ought
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`to seriously consider and avoid.
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`II. The Correct Solution Here Is More Speech, Not Less.
`In weighing the First Amendment issues involved in this case,
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`NBFA also urges the Court to remember that California is seeking to
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`increase access to truthful speech and information, while appellees’ effort
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`is directed at restraining it. “At the heart of the First Amendment is the
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`recognition of the fundamental importance of the free flow of ideas and
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`opinions on matters of public interest and concern.” Hustler Magazine,
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`Inc. v. Falwell, 485 U.S. 46, 50 (1988). Any attempt to restrict speech
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`and information under the banner of the First Amendment should there-
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`fore be met with skepticism, especially when the ability of one party to
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`disseminate their version of the story is so much greater.
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`Companies like Monsanto that produce carcinogenic products will
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`nearly always claim that cancer warnings are “misleading” because the
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`scientific method requires updating prior hypotheses, considering new
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`data over time, and making judgments based on sometimes incomplete
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`or partial data. Indeed, strictly speaking, every single scientific state-
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`ment is only a hypothesis that remains falsifiable in light of new and
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`different data. Accordingly, as we all know, it is not hard to find a con-
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`trary opinion on nearly any scientific conclusion and then call the issue
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`“controversial.” But companies in Monsanto’s position also often have
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`the upper hand in disseminating their version of the story, which is why
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`warning labels are such an effective, important public health tool.
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`Consider, for example, that Bayer and Monsanto can (1) reach
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`farmers directly through their control of the seed market and thus control
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`over local sources of information, see supra Part III; (2) advertise on tel-
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`evision, in newspapers, on social media, and through search engine ad-
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`vertisements; (3) share information on its packaging; (4) lobby state and
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`federal legislatures and regulators; and (5) push its products with large
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`farming conglomerates and the farming industry writ large. In so doing,
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`they can tell their (truthful, non-misleading) side of the story however
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`they want, including through slickly produced and vivid advertisements
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`carefully designed by corporate experts in consumer persuasion to change
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`the maximum number of minds. California’s requirement does not inter-
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`fere with that vital First Amendment right at all. It only insists that a
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`much-less-vivid version of the other side of the story reach consumers
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`through the product label.
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`Appellees’ suit is thus, in reality, an attempt to make sure that
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`Monsanto’s story will always win out, not because of its superior argu-
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`ments in the “marketplace of ideas,” but because consumers making de-
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`cisions in the marketplace never hear any other ideas. This is not the
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`First Amendment’s design. Just as Monsanto is free to spread truthful,
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`non-misleading information about its products, so is California. And
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`warning labels have long been recognized as an appropriate way for the
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`government to do so. See, e.g., Nat’l Inst. of Family & Life Advocates v.
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`Becerra, 138 S. Ct. 2361, 2376 (2018) (“we do not question the legality of
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`health and safety warnings long considered permissible”).
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`Further, in this particular case, warnings labels are even more de-
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`sirable than usual. Many of the most vulnerable individuals exposed to
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`Roundup® are itinerant, rural workers who would be exceedingly diffi-
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`cult to reach through other means. If the warning is right there on the
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`product, the State at least has a chance of making workers aware of the
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`information they may need to protect themselves—including basic steps
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`they might choose to take to limit their overall exposure when working
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`with Roundup®. Making sure listeners can get all that information—
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`and then make their own choices—is at the very core of the First Amend-
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`ment’s free-speech guarantee.
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`III. Label Warnings Ask Very Little of Monsanto.
`California’s Proposition 65 warning is, frankly, the very least that
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`should be done with regard to protecting farmers from Roundup®. To be
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`clear, despite the overheated rhetoric of plaintiffs and their amici below,
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`this case does not concern any kind of ban on Roundup®, and it will not
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`require Monsanto to take it off of shelves. All it requires is putting con-
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`sumers in a better position to judge whether the benefits of Roundup®
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`are worth the risks. Assuming Monsanto is right that Roundup® is
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`highly useful and mostly safe, it is overwhelmingly likely to convince
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`farmers that continuing to use it is in their interest. Conversely, if one
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`accepts the judgment of the independent experts like the IARC and the
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`three separate juries that have heard and decided the evidence (as Cali-
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`fornia is certainly entitled to do), Monsanto is still likely to convince
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`farmers to keep using it—perhaps with limited precautions designed to
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`mitigate the risks that really do e