A year ago, we wrote about a preliminary injunction that barred new lawsuits seeking to enforce California Proposition 65 cancer warning requirements for acrylamide in food. That injunction was appealed, and on March 17, the Ninth Circuit Court of Appeals–which is not known as “business friendly”–decided the injunction was proper. This is a major win for food retailers and manufacturers, as the decision bolsters their right to be free from being compelled to place false and misleading warnings on food products.

Background and the CalChamber lawsuit

Acrylamide is a chemical that forms naturally when certain foods are cooked at high temperatures. It is not an added ingredient. Nevertheless, we have seen an increasing number of attempts to enforce Prop 65 cancer warnings for exposure to acrylamide in food products, including coffee. These lawsuits ask for labels or signs warning that acrylamide is “known to the State of California to cause cancer.” Last year, the California Chamber of Commerce sued in federal court to stop these types of lawsuits.

The issue is that under the First Amendment, a business cannot be forced to make false or misleading statements, but whether acrylamide exposure actually increases the risk of cancer in people is still debated by scientists.

Acrylamide was added to the Prop 65 list based on studies showing that laboratory rats and mice get cancer from high levels of acrylamide exposure. However, the doses given to those laboratory animals are much higher than what a person’s real-world exposure would be–a person would have to eat more than 90 large bags of potato chips every day to consume the equivalent dose found to cause cancer in rats, and human epidemiological studies have found no association between acrylamide and cancer. In the case of coffee, not only did the International Agency for Research on Cancer determine that coffee consumption doesn’t cause cancer, but the state also promulgated a regulation exempting heat-formed chemicals in coffee from cancer warnings under Prop 65 based on the epidemiology and presence of cancer-preventative compounds.

Because there is no consensus in the scientific community that everyday acrylamide exposure actually causes cancer in people, the district court found that CalChamber was likely to succeed on the merits of its claim and barred new lawsuits enforcing such Prop 65 warnings. While that injunction was stayed on appeal, it was emphatically put back into effect in the recent ruling on the merits.

The appeal and Ninth Circuit decision

The main question before the Ninth Circuit was whether the district court correctly decided that CalChamber was likely to succeed on the merits of its First Amendment claim against compelled speech–a question the Ninth Circuit answered with a resounding yes. The appellate court opined that there is a “robust disagreement by reputable scientific sources” about whether acrylamide exposure increases the risk of cancer in people. The three-judge panel held that Proposition 65 warnings about acrylamide and risk of cancer are therefore controversial, and banned. The Ninth Circuit also agreed that a warning stating that acrylamide is a “known” carcinogen is misleading, because consumers would wrongly assume that products with such a label pose a risk of cancer to humans. Because the warnings would not be “purely factual and uncontroversial,” and are “misleading,” the Ninth Circuit concluded that requiring them would violate manufacturers and retailers’ first amendment rights; accordingly it was proper to prevent the Attorney General and private enforcers from bringing new litigation about Prop 65 warnings for acrylamide in food.

What’s next

CalChamber still has a long road ahead. The Ninth Circuit is considering if it should rehear the appeal en banc. If rehearing is denied, the case goes back to the district court, which then has to decide whether to extend the preliminary injunction and bar all future enforcement of Prop 65 cancer warnings for acrylamide in food.

The injunction does not stop enforcers from sending 60-day notices, and cases involving Prop 65 warnings about acrylamide in food are bound to continue for the next few years (since the start of 2022, there have already been 32 new pre-litigation Prop 65 notices posted on the Attorney General’s website alleging exposure to acrylamide in food). Also, it does not directly preclude continuing ongoing litigation, as federal courts generally cannot enjoin state court actions. For now, however, the tide is turning in favor of food retailers and manufacturers.