As previously covered on this blog, on March 29, 2021, the US District Court for the Eastern District of California granted the California Chamber of Commerce’s (CalChamber) preliminary injunction to temporarily bar the state and any private litigants from enforcing Proposition 65 against businesses that do not warn consumers that acrylamide in food is known to the State of California to cause cancer. The district court found that CalChamber was likely to succeed on the merits because neither the State nor the Council for Education and Research on Toxics (CERT), which intervened as a defendant, had shown that the Prop 65 cancer warning for acrylamide in food is “ purely factual and uncontroversial. “

In a unanimous opinion filed March 17, 2022, the US Ninth Circuit Court of Appeals ruled against CERT, the sole applicant challenging the preliminary injunction on appeal, in upholding the injunction that stops new lawsuits from being filed under Prop 65 to obtain cancer warning labels on food and beverages on account of acrylamide. On the constitutional requirement that compelled speech must be purely factual and noncontroversial, the appellate court cited robust disagreement by reputable scientific sources over whether acrylamide in food causes cancer in humans as a basis for concluding the district court did not abuse its discretion in finding for CalChamber . In this regard, organizations such as the National Cancer Institute and the American Cancer Society have said that dietary acrylamide is not likely linked to cancer risks while others, including the International Agency for Research on Cancer, the US National Toxicology Program, and the US Environmental Protection Agency have stated that acrylamide is likely a human carcinogen.

With an injunction decision in its favor from the Court of Appeals, CalChamber now awaits the district court’s ruling on the merits of its complaint. The defendant, CERT, was defeated in an earlier Prop 65 case over acrylamide in coffee after California’s Office of Environmental Health Hazard Assessment (OEHHA) finalized a regulation, discussed here, stating that exposure to acrylamide created during the roasting or brewing process does not pose a significant risk of cancer.

© 2022 Keller and Heckman LLPNational Law Review, Volume XII, Number 80

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