Prop 65 Use of IARC Findings for Listing by State is not an Improper Delegation of Authority

The Fifth Appellate District affirmed a judgment from a trial court holding  that Prop 65's definition of hazardous chemicals as including substances identified as such by IARC, an agency of the United Nations does not constitute an improper delegation of authority.

On method for listing  chemicals on the Prop 65 list is whether it is listed as human or animal carcinogens by the International Agency for Research on Cancer (IARC), which is part of the World Health Organization and headquartered in France. 

Monsanto Company and others filed a petition for writ of mandate challenging §6382(b)(1), arguing it is improper for a foreign entity, unaccountable to the citizens of California, to determine what chemicals are known to the state to cause cancer.

The court of appeal held that the procedures by which such listing determinations are made are simply the working details of how to implement the Prop 65's broader policy of notification and warning with respect to carcinogenic compounds. The listing mechanisms themselves are not the fundamental policy decisions underlying the legislation.

Chlorpyrifos listed under Prop 65

Pursuant to Prop 65 the Developmental and Reproductive Toxicity Identification Committee (DARTIC) under OEHHA made the decision to list chlorpyrifos under Proposition 65 as a developmental toxicant. Chlorpyrifos is one of the most widely-used active ingredients in agricultural insect control products in the world. It was first registered in the U.S. in 1965 and has been on the market for more than forty-five years. Products containing chlorpyrifos will have to be appropriately labeled by late 2018.

Chlorpyrifos was previously considered by the DARTIC in 2008, but was not added to the Proposition 65 list at that time.  Substantial new data on developmental toxicity has become available since the chemical was previously considered for listing. Many groups have pushed to get chlorpyrifos off the market entirely. The Obama administration proposed an all-out ban in 2015. President Donald Trump's appointed Environmental Protection Agency administrator Scott Pruitt ruled in spring 2017 that he would not ban the chemical.  

Chlorpyrifos is an organophosphate insecticide. Pure chlorpyrifos is made up of white or colorless crystals. It has a slight odor.  Chlorpyrifos is used to control many different kinds of pests, including termites, mosquitoes, and roundworms. Chlorpyrifos was first registered as an insecticide in 1965 and the United States Environmental Protection Agency (US EPA) re-registered it in 2006. The only legal indoor use for chlorpyrifos is in containers with treated baits.

The crops with the most use are cotton, corn, almonds and fruit trees including oranges, bananas and apples^.  

CROP	TARGET PESTS
Alfalfa	Alfalfa weevil, armyworms, aphids, potato leafhoppers.
Brassica Vegetables (Cole Crops) (Broccoli, Cauliflower, Cabbage, Kale, Rutabaga, Turnips, etc.)	Cabbage maggot, aphids
Citrus	Scale insects, mealybug, Asian citrus psyllid, rust mite, citrus leaf miner, katydids.
Corn, Field	Corn rootworm, cutworm, white grub, European corn borer
Corn, Sweet	corn earworm, armyworms, corn rootworm (larvae and adult), cutworms, seed corn maggot, wireworms
Cotton	Cotton aphid, Lygus bug, armyworms, pnk bollworm
Grapes	Mealybugs, cutworms, ants
Mint	mint root borer
Onions	Onion maggot
Peanuts	Lesser cornstalk borer, corn rootworms, white mold
Pome Fruits (Apples, Pears)	San Jose scale, rosy apple aphid, pandemis leafroller, oblique-banded leafroller, climbing cutworms, American plum borer
Soybeans	Soybean aphid, bean leaf beetle, grasshoppers, spider mites
Stone Fruits (Peaches, Nectarines, Cherries, Plums)	San Jose scale, peach twig borer, peaach twig borer, peach tree borer, lesser peach tree borer, American plum borer
Sugar Beets	cutworm, wireworm, sugarbeet root maggot, armyworms, grasshoppers
Sweet Potatoes	Wireworms, southern corn rootworm, flea beetles
Tree nuts (Almonds, Pecans, Walnuts, etc.)	San Jose scale, peach twig borer, navel orangeworm, codling moth, walnut husk fly, walnut aphid, pecan nut casebearer, black pecan aphid
Wheat	Aphids, grasshoppers, orange wheatblossom midge

The Office of Environmental Health Hazard Assessment (OEHHA) also has listed perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as reproductive toxicants under Proposition 65.

PFOA and PFOS are surfactants that have been used in a variety of consumer products, including carpets, textiles, leather, non-stick cookware, and paper coatings used in food packaging, to confer stain, grease and water resistance.

 Manufacturing of PFOS was ended in 2002 and PFOA production ceased in 2015.

Glyphosphate the Main Ingredient in Roundup will be Listed on Prop 65 July 7

The State announced that starting July 7 the Roundup's  main ingredient, glyphosate, will be listed on Prop 65.  A year later,  warning labels could be required on the product. Monsanto, the chemical’s maker, has however filed an appeal after losing in court to block the labeling, arguing that Roundup does not the requirements under Prop 65 as a carcinogen.

Prop 65 Listing for Roundup

By Lee N. Smith

 OEHHA has proposed that glyphosate be listed with a No Significant Risk Level (NSRL) of 1100 micrograms per day. For chemicals assessed under Prop 65 for cancer sets a threshold  risk level which represents no significant risk shall be one which is calculated to result in one excess case of cancer in an exposed population of 100,000, assuming lifetime exposure at the level in question.

This glyphosfate value was based on the results of the most sensitive scientific study to be deemed by the agency to be of sufficient quality.  The effective date of this listing has not been determined pending the resolution of litigation with Monsanto regarding OEHHA’s use of the IARC findings.

The deadline for filing comments with OEHHA regarding this listing is May 22. 

California progressed in its effort to list Monsanto’s  herbicide a carcinogen, after a judge in Fresno ruled finally in mid-March that the state could rely on international standards in its effort require cancer warnings on Roundup.

“The Labor Code listing mechanism does not constitute an unconstitutional delegation of authority to an outside agency, since 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,” Fresno Superior Court Judge Kristi Kapetan wrote.

The IARC refers to the International Agency for Research on Cancer, a division of the World Health Organization. The agency listed glyphosate – the main ingredient in Roundup – as a “probable carcinogen to humans” in March 2015.

The listing prompted California’s Office of Environmental Health Hazards to file a notice of intent to list the chemical as a possible carcinogen as required by Proposition 65, passed by voters in 1986.

After office filed the notice in September 2015 Monsanto quickly sued, claiming the reliance on the IARC guidelines was unconstitutional.Monsanto maintains glyphosate is safe.

AMERICAN CHEMISTRY COUNCIL CAMPAIGN AGAINST IARC

By. Lee N. Smith

       The American Chemistry Council has launched a public campaign  to change how the International Agency for Research on Cancer-IARC makes decisions about the carcinogenicity of chemicals.This issignificant in California for among other reasons it impacts Prop 65 listings.

        ACC launched the campaign Jan. 25, 2107 said IARC’s decision-making on the cancer-causing potential of chemicals “suffers from persistent scientific and process deficiencies that result in public confusion and misinformed policy-making.” “Public policy must be based on a transparent, thorough assessment of the best available science,” said Cal Dooley, president and CEO of Washington-based ACC, in a statement. “Currently, IARC’s monographs do not meet this standard though U.S. taxpayers foot the bill for over two-thirds of the international program’s budget.”

ACC,  said IARC’s decisions do not use realistic exposure scenarios when informing the public. ACC website that was launched can be found here http://campaignforaccuracyinpublichealthresearch.com/

Recent issues regarding IARC concern coffee and roundup which is the subject of other suits, 

At one point  (IARC) warned coffee drinkers that coffee might cause cancer. However, IARC revisited its decision and downgrading it from “possibly carcinogenic” to “not classifiable.” 

 The latest dispute  concerns glyphosate, an ingredient in a widely-used weed killers, Roundup, made by Monsanto.In March 2015, an IARC monograph concluded that glyphosate is “probably carcinogenic.” Yet seven months later the European Food Safety Authority (EFSA), an independent agency funded by the EU, published a different assessment, saying glyphosate is “unlikely to pose a carcinogenic hazard to humans.” 

Telone Lawsuit Filed

by. Lee N.Smith

Attorneys representing a Ventura County farmworker and environmental justice groups filed a lawsuit against the California Department of Pesticide Regulation (DPR) in January 2017 alleging that the California state agency did not do enough to protect the public from the fumigant pesticide Telone (1,3-dichloropropene).  The lawsuit, filed in Alameda County Superior Court, alleges that DPR failed to follow the recommendations of scientists, and failed to provide public review for the regulation of the chemical. also known as   Specifically, the lawsuit first charges that DPR did not follow normal public procedures in developing new rules for Telone. This includes giving public notice and allowing the public an opportunity to comment.  The suit also alleges that DPR did not base its regulations on the advice of scientists at the Office of Environmental Health Hazard Assessment (OEHHA), and is in violation of a state law that requires the agencies to work together in crafting regulations, said Mark Weller, a spokesman for Californians for Pesticide Reform.  Banned for agricultural use in the European Union since 2011, as well as in California between 1990 and 1995, Telone is the third most used pesticide in California by pounds and the second most used “pesticide of public health concern” near public schools.   Telone is injected into the soil to kill pests before planting. Pesticide opponents say it drifts for days after and miles away from its application.