On March 30, 2021, a federal court granted the California Chamber of Commerce's (CalChamber) preliminary injunction to temporarily bar the California Attorney General and any private litigants from filing any new Proposition 65 lawsuits targeting acrylamide in food and beverage products. This is a significant ban, but it should be remembered that it impacts new judicial court filings only—notices and existing settlements/filings remain in effect.
What Is Acrylamide?
Acrylamide is a chemical that can be used in a variety of industries such as paper and pulp, construction, foundry, oil drilling, textiles, cosmetics, food processing, plastics, mining, and agricultural. The California Office of Environmental Health Hazard Assessment (OEHHA) added acrylamide to the Proposition 65 list of carcinogens in 1990.
However, it has since been discovered that acrylamide occurs naturally in foods when starches and sugars are cooked at high temperatures. Common sources of acrylamide include breakfast cereals, coffee, crackers, whole grains breads, roasted asparagus, roasted nuts, and prune juice. The prevalence of the naturally occurring chemical in everyday food and beverage products has made it a prime target for Proposition 65 enforcement.
The Court's Injunction
In a lawsuit filed in October 2019, CalChamber argued that warnings for acrylamide constitute false and misleading compelled speech that violates the First Amendment of the United States Constitution because there is a lack of reliable scientific evidence suggesting a causal relationship between acrylamide in food and cancer risk. The court agreed with CalChamber, concluding in its March 2021 order that 'there is no consistent or reliable evidence to support a finding that dietary exposure to acrylamide increases the risk of any type of cancer in humans.'
The court stated that 'if a business decides not to use the safe harbor warning, it risks expensive and lengthy litigation against private enforcers or the state, and defendants carry heavy evidentiary burdens if they attempt to show their products contain permissibly small quantities of acrylamide.'
While this case is pending, the temporary injunction bars the California Attorney General and anyone else from filing new lawsuits against businesses that do not display Proposition 65 acrylamide warnings. The Council for Education and Research on Toxics (CERT) has filed an ex parte for an order staying the preliminary injunction. A final decision in the case is likely several years away.
It is important to remember that this injunction is limited to judicial filings. The injunction 'does not alter any existing consent decrees, settlements, or other agreements related to Proposition 65 warning requirements. For example, this order does not permit businesses that have already agreed to display a certain warning to take those warnings down, and businesses that have agreed to reformulate their products to reduce acrylamide content are not permitted by this order to breach those agreements.'
Moreover, the ruling does not prohibit the service of new Notices of Violation. Thus, companies should continue to evaluate and manage their acrylamide risk.