Last week, California businesses won another victory in the continuing debate over whether the Proposition 65 warning requirement applies to acrylamide in food and beverage products.
In a March 17 ruling, the Ninth Circuit U.S. Court of Appeals rejected an appeal from the Council for Education and Research on Toxics (CERT) and affirmed last year’s preliminary injunction barring the California Attorney General and anyone else from filing new lawsuits against businesses to enforce the Proposition 65 warning requirement for the presence of acrylamide in food and beverage products.
The California Office of Environmental Health Hazard Assessment (OEHHA) added acrylamide to the Proposition 65 list of carcinogens in 1990, but acrylamide was not detected in foods until 2002.
Acrylamide is not intentionally added to food products but instead is formed naturally as a result of cooking or heating certain foods, such as coffee, roasted nuts, and breads, to name a few.
The pervasive nature of acrylamide in everyday food and beverage products has made it an obvious target for Proposition 65 private enforcers, who have already collected millions of dollars in attorney fees and costs against businesses.
In October 2019, CalChamber filed its First Amendment lawsuit against the California Attorney General in federal district court, challenging as unconstitutional the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products.
The CalChamber filed an amended complaint on March 16, 2020 seeking a preliminary injunction prohibiting the Attorney General and private enforcers of Proposition 65 from filing or prosecuting new lawsuits to enforce the warning requirement for cancer as applied to acrylamide in food and beverage products.
The CalChamber argued that under the U.S. Supreme Court decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the State cannot compel commercial entities to disclose information about their products that is not “purely factual and uncontroversial.”
CalChamber’s epidemiologist and a toxicologist, as well as a key state scientist, provided expert testimony showing California does not know that acrylamide causes cancer in humans.
Appeals Court Ruling
A panel of Ninth Circuit judges upheld Chief U.S. District Judge Kimberly J. Mueller’s decision that the state had not carried its burden of showing that Proposition 65 warnings for acrylamide in food are purely factual and uncontroversial. The Ninth Circuit ruling pointed to robust disagreement by reputable scientific sources over whether acrylamide in food causes cancer in humans.
The Ninth Circuit ruling also upheld the district court’s conclusion that a Proposition 65 warning for acrylamide is misleading. The state of California, the ruling stated, does not know if acrylamide causes cancer in humans.
According to the Ninth Circuit, the record supported the district court’s finding that the Proposition 65 enforcement regime created a heavy litigation burden on manufacturers that use alternative warnings rather than the approved safe harbor warning in California’s health and safety regulations.
With the March 17 Ninth Circuit decision, future Proposition 65 litigation pertaining to acrylamide in food and beverage products will be blocked until the court issues a final ruling. The case also may have major implications for other Proposition 65 listed chemicals.