By Joshua Bloom
In a ground-breaking ruling, a California federal district court issued a preliminary injunction against the state of California or private plaintiffs from enforcing Proposition 65 allegations of failure to warn from risks of exposure to acrylamide. The injunction relates only to new lawsuits for the period this case remains pending.
Acrylamide is one of many chemicals listed under California’s Proposition 65 on the basis of being “known by the State of California to cause cancer,” and therefore triggers a warning requirement for food and beverage products if the concentration of acrylamide exceeds a threshold level. In those products, acrylamide is not added to the product, but rather is formed by a reaction between sugars and asparagine, a naturally occurring amino acid, when subjected to heat. As a result, acrylamide is found in many products consumed by the public, including baked or fried foods, such as potato chips or bread, roasted coffee, or almonds. Although animal studies have found some correlation between acrylamide exposure and increased risk of cancer, there is no consistent evidence that dietary exposure to acrylamide in humans is associated with any cancer risk. Indeed, both federal and state public health agencies recommend eating foods that may incidentally contain acrylamide. Further, the California agency that oversees Proposition 65, the Office of Environmental Health Hazard Assessment, issued a regulation providing that Proposition 65 acrylamide warnings associated with coffee are not required, with the U.S. Food and Drug Administration’s blessing.
The California Chamber of Commerce filed suit against the state, arguing that by compelling a Proposition 65 warning on consumer food products with regard to cancer risks from acrylamide exposure is counter to the First Amendment, by forcing false speech. The court agreed, and analyzed the issue under the standard established by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Council, 471 U.S. 626 (1985). To permit compelled commercial speech under Zauderer, the government must show that the compelled speech (1) is purely factual and uncontroversial, (2) is justified and not unduly burdensome, and (3) is reasonably related to a governmental interest.
As to the first condition, the court found that stating that acrylamide is “known to cause cancer” is not factual, nor is it free of controversy. To the contrary, most studies suggest naturally forming acrylamide in food products does not cause cancer in humans. Second, requiring manufacturers to navigate around language that would both satisfy Proposition 65 warning requirements while at the same time not making false claims would be unduly burdensome. Lastly, although the state has a strong interest in protecting its citizens from cancer, requiring the warning here would not advance that interest because of the dubious link between the dietary acrylamide exposure and cancer.
The intervenor in the case, Council for Education and Research on Toxics (CERT), argued that the injunction would amount to a prior restraint. The court disagreed. It noted that it was not enjoining notice letters or demands. It further pointed out that a federal court has the power to enjoin state actions where those actions that have illegal objectives—the court stated that CERT could not use the First Amendment to allow a right to enforce a law that contradicts the Constitution.
The court left open the possibility that the state could possibly dissolve the injunction by permitting enforcement of alternative, acceptable warning language, or might even be successful on the merits of the case in arguing that a permanent injunction is not warranted. But as the court noted, “these are questions for another day.”
Specifically, the preliminary injunction issued by the court is as follows:
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.
This order does not alter any existing consent decrees, settlements, or other agreements related to Proposition 65 warning requirements.
The case is California Chamber of Commerce v. Xavier Becerra, Case No. 2:19-cv-02019-KJM-EFB (C.D. Cal. March 30, 2021).
Joshua A. Bloom, Partner, Environmental General Counsel