The U.S. District Court for the Eastern District of California has affirmed a 2021 ruling that “Prop 65 warnings for dietary acrylamide are misleading and controversial as they state that dietary acrylamide is carcinogenic to humans despite disagreement among scientists."
The May 2 decision by U.S. District Court Judge Daniel Calabretta in Sacramento ended a six-year battle by the California Chamber of Commerce against enforcement actions by the State of California that “compel CalChamber’s members to espouse that view despite their disagreement.”
In granting the permanent injunction sought by CalChamber, Calabretta wrote that “the state’s Prop 65 warnings as to dietary acrylamide are unconstitutional, and said he “will grant CalChamber’s request for declaratory relief and a permanent injunction enjoining enforcement of the Prop 65 warning requirements as to dietary acrylamide.”
CalChamber hailed the decision as a victory for First Amendment rights.
“Now, after more than five years, businesses will have the longstanding issue of unnecessary Prop 65 warnings decided,” said Jennifer Barrera, CalChamber President and CEO. “Compelling businesses to provide burdensome warnings that lack scientific backing is simply unconstitutional.”
The decision echoed concerns raised by Calabretta, a Biden appointee, during oral arguments that the average consumer is likely to misinterpret the warning as affirming a definitive cancer risk unsupported by a consensus of scientific evidence.
“Today’s ruling not only protects businesses from enforcement actions based on these warnings, but also upholds the principle that government-mandated disclosures must be factually accurate and not misleading,” said Barrera in a statement.
Acrylamide in food forms from sugars and an amino acid that are naturally present in food. It does not come from food packaging or the environment, but it can form in some foods during high-temperature cooking processes, such as frying, roasting, and baking, according to the U.S. Food and Drug Administration.
Acrylamide caused cancer in animals in studies where animals were exposed to acrylamide at very high doses. In 2010, the Joint Food and Agriculture Organization/World Health Organization Expert Committee on Food Additives (JECFA) concluded that acrylamide is a human health concern, and suggested additional long-term studies. FDA experts participated in the evaluation.
The California Chamber of Commerce filed the federal lawsuit in October 2019 challenging California’s requirement under Proposition 65 that businesses provide cancer warnings for products containing acrylamide.
The suit alleged that the mandatory warning violated the First Amendment by compelling false or misleading speech.
The State of California and a private intervenor, the Council for Education and Research on Toxics (CERT), opposed the lawsuit and defended the warning requirement. In March of 2021, the court granted a preliminary injunction halting new lawsuits to enforce the Prop 65 warning requirement for acrylamide.
At that time, the court found the warning language likely violated food producers' First Amendment rights because it required them to convey a misleading impression of scientific certainty about cancer risk. CERT appealed the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit, which upheld the injunction in March of 2022.
Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, is a California law that requires businesses to warn consumers about potential exposure to chemicals known to cause cancer, birth defects, or other reproductive harm.
