KANSAS CITY — With a warning-label compliance deadline looming, the wheat supply chain faces myriad unanswered questions related to the controversial listing of the herbicide glyphosate under California’s Proposition 65.
The issue received at least a temporary reprieve after a California judge issued a preliminary injunction halting the state’s glyphosate labeling requirement until a final ruling on the matter is issued by the court. That case was filed in December by an agricultural coalition led by the National Association of Wheat Growers (NAWG).
Flour millers, grain merchants, wheat growers, plant breeders and bakers discussed the ongoing issues related to glyphosate regulation at the Wheat Quality Council’s annual meeting Feb. 21 at Embassy Suites Kansas City International Airport hotel. A presentation was prepared by Dale Nellor, vice-president of government and technical affairs with the North American Millers’ Association. In Mr. Nellor’s weather-related absence, the glyphosate update was given by David Katzke, a quality and regulatory operations fellow at General Mills, Inc.
Glyphosate, used in products such as Roundup, is approved for use in the United States on 250 agricultural crops as an herbicide and, less frequently in the case of wheat, as a desiccant.
Steve Joehl, director of research and technology with the NAWG, explained glyphosate usage for spring wheat grown in North Dakota.
“Farmers know what it’s like to cut green soybeans,” Mr. Joehl said. “Just like grinding a crop through a combine, the combine just doesn’t want to work.
“Even though wheat is matured and dropped below 30% grain moisture, you’re going to have green weeds in spring wheat. So, they come in as a harvest aid to kill the weeds, over the top, as a pre-harvest treatment.”
Glyphosate has been used in the United States for around 40 years. In 2015, it was called a “probable human carcinogen” by the World Health Organization’s International Agency for Research on Cancer. Based on that determination — and despite contrary findings by several other international organizations, including the European Food Safety Authority and the Joint Food and Agriculture Organization/World Health Organization Meeting on Pesticide Residues, another subdivision of the W.H.O. — California listed glyphosate under Proposition 65 in July 2017 with a one-year compliance period.
The law — officially California’s Safe Drinking Water and Toxic Enforcement Act of 1986 — requires any consumer-facing product containing carcinogens to display the warning “known to the state of California to cause cancer, birth defects or other reproductive harm” via a label, sign or newspaper notice.
Five months after the herbicide was added to the Proposition 65 list, the U.S. Environmental Protection Agency concluded “glyphosate is not likely to be carcinogenic to humans.”
For its part, the U.S. Food and Drug Administration tests to ensure that pesticide chemical residues on or in domestic and imported foods do not exceed the limits established by the E.P.A.
“The F.D.A. and E.P.A. are basically on the same page that glyphosate likely doesn’t cause cancer,” Mr. Katzke said. “The bottom line is it really doesn’t matter. … Common sense and science are not going to prevail here. This is more about consumer advocacy and where the legislation is.”
The California Attorney General’s Office — with the assistance of watchdog and advocacy groups — enforces Proposition 65, a list that currently contains 974 chemicals. As failure to provide the carcinogen notice may result in fines as high as $25,000 per violation per day, Proposition 65 constitutes a big business: In 2016, there was $30.1 million in settlements.
Among the pieces of the glyphosate labeling puzzle is how to determine the residual level of the herbicide remaining in a broad range of consumer-facing food products after processing and whether the level falls below a “safe harbor” threshold that wouldn’t require labeling in California.
The E.P.A has listed a tolerance level for grains such as wheat at 30 p.p.m. A safe harbor level of 11,000 micrograms has been proposed, below which labeling would not be required.
“Is there an easy way to measure that within the supply chain?” Mr. Katzke asked. “There is not an easy way. If they tested and developed a way, what would you want that test threshold to be? It’s an unanswerable question at the moment.
“We could form a task force out of the people in this room and tackle some of this. So much is unknown and we’re four months away from compliance.”
Testing methods for glyphosate residue levels were discussed as well. The NAWG is investigating suspicious findings in unexpected places, such as desert durum, which has no glyphosate applications, Mr. Joehl said.
“About 30% of the acres are treated with a fallow treatment before a crop is planted, or the biggest use is no-till prior to a crop being planted,” Mr. Joehl said. “Yet we continue to get levels of glyphosate showing up in wheat. And it’s highly suspicious that we continue to get low levels — levels near level of detection — showing up in wheat.
“It creates a lot of confusion and questions about the sampling methods. Was grain contaminated in a vessel that held corn or soy? Was the lab method suspicious? Was there contamination in the lab? Why are we showing levels of glyphosate in wheat that causes this issue anywhere?”
On the same day representatives from the wheat supply chain were discussing the issue in Kansas City, 11 attorneys representing an agricultural coalition led by the NAWG were in a California courtroom giving oral arguments asking the court to halt the regulation until the case could be heard. The coalition argued that the cancer-causing statement is factually incorrect, and under the First Amendment to the Constitution, the state cannot compel companies or individuals to make false statements.
Additionally, the coalition outlined other “immediate and irreparable harm”: impugning the reputation of agricultural products, crops and farming operations; increasing costs of farming practices; forcing the use of alternatives to glyphosate that are less effective, more labor intensive, more expensive and bad for the environment; placing farmers at a competitive disadvantage; and imposing high risk for expensive litigation.
An amicus brief supporting the agricultural coalition’s injunction was filed in January by attorneys general in Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Missouri, North Dakota, Oklahoma, South Dakota and Wisconsin. A separate amicus brief was filed in support by the U.S. Chamber of Commerce and the California Chamber of Commerce.
U.S. District Judge William Shubb in the Eastern District of California agreed with the coalition and granted the injunction on Feb. 27.
Mr. Shubb wrote: “As applied to glyphosate, the required warnings are false and misleading. Plaintiffs have thus established a likelihood of success on the merits of their claim that the warning requirement violates their First Amendment rights.”
While the injunction is surely welcome news for the W.Q.C., members continue to work toward understanding the controversy and educating the supply chain.
“Collaboration is going on,” Mr. Katzke said. “Within the North American Millers’ Association, American Bakers Association, National Pasta Association, National Association of Wheat Growers, we all have activities going on to try to understand this.“It’s a challenging task because there is a lot of misinformation out there on the internet that makes it really hard. Science and common sense don’t always fly.”