Business Law

New Prop. 65 Decision: California Cannot Force Businesses to Put Cancer Warnings for Acrylamide on Food and Beverage Products

By: Ann Grottveit

On March 29, 2021, the federal Circuit Court for the Eastern District delivered a significant victory to the California business community in the Proposition 65 case, California Chamber of Commerce v. Becerra. District Court Judge Kimberly Mueller ruled that the State and private litigants cannot force businesses to label food and beverage products with cancer warnings for acrylamide. Facing opposition from the Attorney General and Council for Education and Research on Toxics, the California Chamber of Commerce successfully argued that compelling businesses to label their products with a warning label would violate their First Amendment speech privileges.

The opinion found the State failed to show that the warning consists of “purely factual and uncontroversial information” and would not impose an undue burden on businesses. The assertion that food products can expose consumers to acrylamide was found to be misleading, leading to the belief that acrylamide is an additive or ingredient of a product. Judge Mueller also determined that consumers are unlikely to discern the basis for the warning, which in this case is due to the presumption of toxicologists that chemicals causing cancer in animals also cause cancer in humans without evidence to the contrary. The court observed that a warning which advises what is “known” to California assumes the reader understands the complex legal framework behind Proposition 65. Instead, consumers who read the warning will probably believe that eating the food increases their personal risk of cancer. Because the science is unsettled on this issue, the court found the warning misleads readers by inappropriately elevating one side of the scientific debate over others.

Judge Mueller granted plaintiff’s request for a preliminary injunction enjoining new lawsuits seeking to enforce the warning as applied to acrylamide in food and beverage products and found a likelihood that the Chamber would be successful on the merits of this case.

This decision relied in part on a recent Prop 65 case from the same court, National Association of Wheat Growers et al. v. Zeise et al., holding that California cannot place cancer warning on products containing glyphosate. That case is currently being briefed in the 9th Circuit Court of Appeals.

This article was originally prepared Ann Grottveit (agrottveit@kscsacramento.com) of Kahn, Soares & Conway, LLP, in Sacramento, CA, and is republished with permission.

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