Prop 65 claims for alleged exposure to acrylamide in food are all too common. In the first three months of 2021 alone there have been 109 acrylamide notices issued. Acrylamide is not a chemical that is intentionally added to food, but rather forms in many types of foods when cooked at high temperatures, including chips, French fries, baked goods, and coffee.
In the face of increased enforcement over acrylamide, including the ongoing coffee litigation, the California Chamber of Commerce filed a lawsuit against the California Attorney General seeking to halt enforcers from requiring companies to provide Prop 65 cancer warnings based on exposure to acrylamide in food.
Acrylamide has been shown to cause cancer in mice and rats, but there is debate on whether epidemiological studies show greater consumption of acrylamide in food and drinks increases human cancer risk. The Chamber alleges Prop 65 violates businesses’ First Amendment rights if it mandates a warning stating that acrylamide is “known” to the State to cause cancer because California does not “know” that eating food with acrylamide causes cancer in people. The Chamber asserts that a Prop 65 warning about acrylamide being “known” to cause cancer would not be “purely factual and uncontroversial.”
The Chamber moved for a preliminary injunction barring new lawsuits brought by the State and any private enforcer seeking to enforce Proposition 65 against businesses who do not warn consumers that acrylamide in food is “known to the State of California to cause cancer.” Yesterday, the Eastern District of California granted the Chamber’s motion issuing a preliminary injunction:
While this action is pending and until a further order of this court, no person may file or prosecute a new lawsuit to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products. This injunction applies to the requirement that any “person in the course of doing business” provide a “clear and reasonable warning” for cancer before “expos[ing] any individual to” acrylamide in food and beverage products under California Health & Safety Code § 25249.6. It applies to the Attorney General and his officers, employees, or agents, and all those in privity or acting in concert with those entities or individuals, including private enforcers under section 25249.7(d) of the California Health & Safety Code.
The court found that the Chamber is likely to show that cancer warnings for acrylamide are not purely factual and uncontroversial. It noted that “the safe harbor warning is controversial because it elevates one side of a legitimately unresolved scientific debate about whether eating foods and drinks containing acrylamide increases the risk of cancer.” The court also found the Chamber showed Prop 65 imposes an undue burden on those who would provide a more nuanced warning over the safe harbor warning statement.
Notably, the motion did not seek to prohibit new notices of violation, to enjoin existing suits, to prohibit settlements or consent judgments, or to bar CERT’s coffee litigation. The court’s ruling may not stop the deluge of acrylamide notices we have seen in recent history, and will pose challenging strategic issues for defendants about whether to hold off on resolving notices.