The Ninth Circuit spares breakfast foods, snacks and other favorite foods from cancer and reproductive toxicity warnings

In a major development under California Proposition 65, California cannot require warnings for acrylamide exposures in food. This is good news for stakeholders in a legal regime that has gone largely unchecked over the years and raises hope that Proposition 65 could be limited in other circumstances as well.

Proposition 65 is California’s unique right-to-know law that requires companies to provide a warning before exposing consumers to a chemical known to the state to cause cancer or reproductive toxicity. Acrylamide as an industrial ingredient was added to the list in 1990 after studies showed it caused cancer in rats and mice, although epidemiological studies have failed to prove a link to it. human cancer and the US Food and Drug Administration said warning labels about acrylamide in foods could be misleading.

In recent years, nearly 1,000 notices of alleged Proposition 65 violations have been issued by plaintiffs’ attorneys for exposures to acrylamide in food without warning. Plaintiff’s attorneys targeted cookies, crackers, cereals, bread, french fries and other foods that undergo the Maillard reaction (the chemical reaction that gives a distinctive flavor and color to golden foods) . Foods such as potatoes, asparagus and coffee beans contain a natural amino acid, asparagine, which when heated can form acrylamide.

The California Chamber of Commerce (the Chamber) filed a declaratory and injunctive relief action against the Attorney General to end the cottage industry from litigation brought under Proposition 65 for acrylamide exposures from food . The House has sought to enforce the First Amendment rights of its members not to be coerced into placing false or misleading acrylamide warnings on their food products. The Council for Education and Research in Toxics (CERT), a frequent plaintiff in Proposition 65 cases, intervened, arguing to the contrary: that an injunction would impose an unconstitutional prior restraint on its First Amendment rights. The district court nevertheless granted the injunction, but a divided U.S. Court of Appeals for the Ninth Circuit Motions Committee stayed it in part with respect to private executors. On March 17, 2022, the Ninth Circuit affirmed the district court’s broad injunction in , No. 21-15745 (9th Cir. March 17, 2022), and in doing so lifted the earlier partial stay.

Since Proposition 65 mandates commercial speech, the relevant question was whether California could justify compelled disclosure. The district court applied a three-factor test to decide that (1) the state failed to demonstrate that the acrylamide warning was purely factual and uncontroversial; (2) the warning was probably misleading; and (3) the Proposition 65 enforcement system may impose a heavy legal burden on those who use alternatives to the safe harbor warning.

The Ninth Circuit agreed that in light of strong disagreement from reputable scientific sources about the carcinogenic effect of acrylamide in food, the district court’s decision that the warning is controversial was not clearly wrong. Further, the Ninth Circuit agreed that the reference to a “known” carcinogen in the safety warning carries a complex legal meaning under Proposition 65 that consumers would not derive from the warning without context. Because a reasonable person might think California food will increase consumers’ cancer risk (which California said it didn’t, in fact), the Ninth Circuit found the warning to be misleading.

Finally, the Ninth Circuit agreed that the Proposition 65 enforcement regime creates a heavy legal burden for food producers and sellers because Proposition 65 does not allow companies to add information to the warning. of safety at their discretion, preventing them from explaining their point of view on the true dangers of acrylamide in food. Further, the Ninth Circuit found that the high cost of product testing to counter Proposition 65’s warning requirement disproportionately affects small businesses and appears unduly burdensome.

The Ninth Circuit ultimately concluded that CERT could not claim protection under the prior restraint doctrine because the Proposition 65 acrylamide suit is likely unconstitutional. The Ninth Circuit’s decision does not directly apply to other pending acrylamide litigation or settlements and to consent judgments in prior litigation. But companies with past and existing Proposition 65 acrylamide cases should review the Ninth Circuit’s ruling and carefully consider its impact on those cases.

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