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The California Office of Environmental Health Hazard Assessment (OEHHA) is proposing changes to its messaging to consumers regarding the cancer risk associated with products made with the weed-killing chemical glyphosate.

The language shift is subtle but is significant for multiple reasons, including the potential for it to impact Monsanto’s efforts to appeal trial losses to the U.S. Supreme Court.

On its face, the language changes appear to favor Monsanto by ignoring an internal debate among scientists at the U.S. Environmental Protection Agency (EPA) over the cancer risk of glyphosate, and lending strength to official EPA proclamations that glyphosate is safe.

OEHHA’s “proposed modifications” include changing one of its statements from this:

“Other authorities, including USEPA, have determined that glyphosate is unlikely to cause cancer, or that the evidence is inconclusive” to this: “U.S. EPA has determined that glyphosate is not likely to be carcinogenic to humans; other authorities have made similar determinations.”

OEHHA is also changing the phrase “personal cancer risk” to “potential risk.”

In an April 8 letter to OEHHA, Michal Freedhoff, EPA’s assistant administrator for chemical safety and pollution prevention, expressed appreciation for the “constructive approach that California is pursuing to address this matter…” and said the agency “looks forward to “further strengthening our relationships with our stakeholders…”

OEHHA is accepting public comments on the proposed change until April 28.

How to handle warning language around glyphosate, the active ingredient in Monsanto’s Roundup and hundreds of other products, has been an issue for OEHHA ever since it listed the chemical as one that consumers should know comes with risks.

OEHHA made that move after the International Agency for Research on Cancer classified glyphosate as a probable human carcinogen in 2015.

Under its “Prop 65” law, state regulators maintain a list of chemicals “known to the state” to cause cancer or reproductive problems, and require businesses to inform Californians about risks they could face with exposures.

Monsanto, which is owned by Bayer AG, has fought in the courts and through heavy lobbying to thwart OEHHA’s inclusion of glyphosate on its list of risky chemicals.

The International Agency for Research on Cancer classification triggered the filing of tens of thousands of lawsuits against Monsanto by people alleging exposure to Monsanto’s glyphosate-based herbicides, such as Roundup, caused them to develop cancer.

In defending against the litigation, Monsanto has pushed EPA officials to back the safety of the chemical and has found solid support from the agency.

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The agency states on its website that its scientists found “no evidence that glyphosate causes cancer in humans.”

But internal EPA communications show that agency scientists did indeed find such evidence and they disagreed with the official EPA position.

One series of emails shows that scientists within the EPA’s Office of Research and Development (ORD) advised in December of 2015 that the agency’s conclusion that glyphosate was “not likely” to cause cancer was “inappropriate” given the scientific research.

The ORD scientists agreed with International Agency for Research on Cancer in part, finding that there is “limited evidence of carcinogenicity in humans,” which “rules out” the ability of EPA to say that glyphosate is not likely to be carcinogenic, according to internal communications.

According to the ORD scientists, “Bottom line: Based on glyphosate discussions to date among ORD scientists — where we have not formally discussed a classification — I believe we would be split between “likely to be carcinogenic” and “suggestive evidence.”

On the other hand

Importantly, that April 8 letter from the EPA to OEHHA includes agency approval for the proposed California labeling language on glyphosate products, stating the language would be:

 “ … sufficiently clear regarding EPA’s position and thus would not be considered false and misleading.

“Therefore, this revised language could be approved by EPA if pesticide registrants requested it for inclusion on glyphosate product labels, and the products would not be considered misbranded.”

That seemingly undermines the argument lawyers for Bayer/Monsanto have made to the U.S. Supreme Court in seeking the court’s review of lower court losses in the Roundup litigation.

The company has argued that it can’t be held accountable for failing to include a cancer warning on its labels because the EPA has “forbidden” such a warning.

The EPA letter “completely destroys” that argument, according to one plaintiff’s attorney in the Roundup litigation.

A spokesperson for Bayer did not respond to a request for comment.

Originally published on Carey Gillam’s UnSpun Substack page.