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Corporate Constitutional Rights are Cancerous to Democracy

We must take these public health choices out of the hands of corporate executives and put corporations in their proper place: subservient to public welfare.

"Monsanto has known for several decades that Roundup (glyphosate) causes cancer. Rather than informing consumers about the glyphosate cancer risk, Monsanto buried the risks as sales of Roundup continued to skyrocket." (Photo: Georges Gobet/AFP/Getty Images)

"Monsanto has known for several decades that Roundup (glyphosate) causes cancer. Rather than informing consumers about the glyphosate cancer risk, Monsanto buried the risks as sales of Roundup continued to skyrocket." (Photo: Georges Gobet/AFP/Getty Images)

Should constitutional rights be used to shield corporations from hiding their dangerous products from the public? A recent federal court decision says so. 

Monsanto is the maker of Roundup which is used around the world as a weedkiller, a drying agent, and a desiccant to speed the harvest of corn, soybean, and wheat crops. Roundup's active ingredient is glyphosate. In 2015, the International Agency for Research on Cancer (IARC) labeled the herbicide as “probably carcinogenic.” In 2017, the California Office of Environmental Health Hazard Assessment listed glyphosate as a cancer-causing chemical and California started listing Glyphosate in the list of chemicals known to cause cancer.

Dewayne Johnson v. Monsanto Company was the first Roundup cancer lawsuit to proceed to trial. The lawsuit alleged that exposure to Monsanto’s Roundup weed killer and its active ingredient, glyphosate, caused Dewayne Johnson, a groundskeeper, to develop non-Hodgkin lymphoma (NHL). The jury awarded Dewayne Johnson $289.2 million, making this a landmark Monsanto Roundup verdict.

The next two Roundup cancer lawsuits resulted in jury verdicts against Monsanto. The total damages awarded in these first three Roundup cancer lawsuits was $2.424 billion.

Since Monsanto introduced Roundup in the 1970s, Monsanto has denied claims that Roundup causes cancer. “But according to internal Monsanto emails now known throughout the world as The Monsanto Papers, Monsanto has known for several decades that Roundup (glyphosate) causes cancer. Rather than informing consumers about the glyphosate cancer risk, Monsanto buried the risks as sales of Roundup continued to skyrocket.”

Because of these Supreme Court invented Corporate Constitutional Rights, corporations enjoy more rights than people or their local governments to exercise police powers to protect the health, safety, and welfare of the people in their communities.

In 2015 the International Agency for Research on Cancer (IARC) found glyphosate to be “probably carcinogenic to humans.” It included a summary of a review of studies and a meta analysis that showed a significant increased risk of NHL for individuals exposed to Roundup.

Bayer purchased Monsanto in 2018. As a result of the first case in which Monsanto was found liable for the cancer caused by Roundup, tens of thousands of other lawsuits were filed against Monsanto. Bayer, now owner of Monsanto, has agreed to pay $10 billion for these legal claims that their product Roundup causes cancer.

“The Monsanto Papers tell an alarming story of ghostwriting, scientific manipulation, collusion with the Environmental Protection Agency (EPA), and previously undisclosed information about how the human body absorbs glyphosate. These documents, which Monsanto does not want you to see, provide a deeper understanding of the serious public health consequences surrounding Monsanto’s conduct in marketing Roundup.”

Based on California's Prop 65, products that are found to cause cancer require businesses to "provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm."

Even in the face of Monsanto's deceit and Bayer's liability, U.S. federal appeals court Judge William Shubb wrote in National Association of Wheat Growers, et al. v. Becerra that mandating a cancer warning label on products which contain glyphosate, such as Roundup, would violate the corporation's First Amendment rights by compelling them to echo a finding that the judge characterized as “not purely factual and uncontroversial.”

Judge Shubb wrote that California has other options to inform consumers that the state has determined that glyphosate is a carcinogen in ways that would not burden the free speech of corporations such as Bayer. The state could run advertising campaigns or post information on the internet. However, most consumers will never see a warning that is not on the label. 

This story is strangely similar to the fossil fuel industry’s knowledge in the 1970s that burning fossil fuel was a major cause of climate change. Yet the fossil fuel industry covered up that information and published false information for decades and allowed the harm to continue unabated. Now, with the lawsuits against Monsanto in which plaintiffs were awarded jury verdicts totaling over $2 billion and the Monsanto Papers that show the same disturbing story of deceit and coverup, a federal court has ruled in favor of the corporations. The federal court ruling is based on the Supreme Court-invented Corporate Constitutional Rights (CCRs), the notion that corporations have constitutional rights such as First Amendment Free Speech rights. For the fossil fuel industry and climate change story, see “How Corporate Rule Fueled the Climate Crisis.”

Because of these Supreme Court invented Corporate Constitutional Rights, corporations enjoy more rights than people or their local governments to exercise police powers to protect the health, safety, and welfare of the people in their communities.

In expanding First Amendment free speech protection to corporate commercial speech, the federal courts have relied heavily on the notion that the public has a First Amendment right to hear what corporations have to say. 

It turns out that what the public gets to hear is only what the corporations want us to hear which is whatever increases their profits or makes them look good. In this case, Monsanto did not want the public to hear that Roundup might cause cancer and used its so-called First Amendment constitutional right ‘not to speak’ to hide that information from the public to maintain its profits.

We must take these public health choices out of the hands of corporate executives and put corporations in their proper place: subservient to public welfare. The only way to do that is make clear that corporations do not have Constitutional rights and that these rights are meant for human beings, not artificial entities. The We the People Amendment to the Constitution, written by the Move to Amend coalition and introduced by Congresswoman Pramila Jayapal (WA) will do just that. House Joint Resolution 48 currently has 74 co-sponsors in the House of Representatives, and with rulings like National Association of Wheat Growers, et al. v. Becerra the long list of reasons for this critical amendment continues to grow. Join the movement to pass the We the People Amendment: https://www.movetoamend.org/motion.

Judy Young

Judy Young is an attorney and member of Move to Amend's Law & Research Committee.

Kaitlin Sopoci-Belknap

Kaitlin Sopoci-Belknap

Kaitlin Sopoci-Belknap is national director of Move to Amend and an active member of Extinction Rebellion. She has served as a local elected official, campaign organizer, trainer, facilitator and mediator, and coordinated numerous grassroots and national projects and organizations.

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