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March 31, 2021

Prop 65 Bounty Hunters Barred from Filing Acrylamide Lawsuits Based on First Amendment


In a landmark ruling with implications for the future of Proposition 65 enforcement, the US District Court for the Eastern District of California has preliminarily enjoined any person from filing or prosecuting lawsuits seeking cancer warnings for acrylamide on food and beverage products sold in California. The ruling stops hundreds of enforcement actions in their tracks, bodes well for the ultimate end of Proposition 65 acrylamide lawsuits, and has implications for other listed chemicals.

The California Office of Environmental Health Hazard Assessment (OEHHA) added acrylamide to the Proposition 65 list of carcinogens in 1990, but acrylamide was not detected in foods until 2002. Acrylamide is not intentionally added to food products but is formed naturally when some foods are cooked or otherwise processed with heat. Common sources of acrylamide in the human diet include breakfast cereals, coffee, crackers, whole grains breads, roasted asparagus, roasted nuts, and prune juice. The near-ubiquitous nature of the chemical in everyday food and beverage products has made it a prime target for Proposition 65 enforcement. Since 2002, private enforcers have served more than one thousand pre-litigation notices of violation concerning acrylamide in food and beverage products, reaping millions of dollars in settlements.

In October 2019, the California Chamber of Commerce (CalChamber) filed a lawsuit against the California Attorney General in federal district court challenging the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products. CalChamber alleges that these compelled warnings are not "purely factual and uncontroversial" and thus violate the First Amendment prohibition against compelled commercial speech.

After amending its pleadings and surviving a motion to dismiss, CalChamber sought a preliminary injunction prohibiting the Attorney General and private enforcers of Proposition 65 from filing or prosecuting new lawsuits to enforce the warning requirement for cancer as applied to acrylamide in food and beverage products. CalChamber argued that under the US Supreme Court's decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the government cannot compel commercial speakers to disclose information about their products that is not "purely factual and uncontroversial." CalChamber argued that a warning that acrylamide in food is "known to the State to cause cancer" is not purely factual and uncontroversial, because no governmental or scientific agency has classified acrylamide as a "known" human carcinogen, and scientific studies in humans have found no reliable evidence that exposure to acrylamide through the diet is associated with any risk of developing cancer. CalChamber presented expert testimony from an epidemiologist and a toxicologist, and a key state scientist admitted that California does not know that acrylamide causes cancer in humans.

The court agreed that CalChamber was likely to succeed on the merits, holding that "[a]t this stage of the case, the State has not shown this warning is purely factual and uncontroversial." The court reasoned that although there was some evidence to support an inference that acrylamide increases the risk of cancer in humans (such as laboratory experiments in mice and rats), "dozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide," and the Proposition 65 "safe harbor warning is controversial because it elevates one side of a legitimately unresolved scientific debate about whether eating foods and drinks containing acrylamide increases the risk of cancer."

The court also rejected the Attorney General's argument that California businesses were free to use an alternative warning to avoid the constitutional infirmity, reasoning that the State could not "put the burden on commercial speakers to draft a warning that both protects their right not to speak and complies with Proposition 65." Thus, the court explained: "If the seas beyond the safe harbor are so perilous that no one risks a voyage, then the State has either compelled speech that is not purely factual, or its regulations impose an undue burden." In either case, the court concluded, the State had not carried its burden to show that Proposition 65 warnings for acrylamide in food are constitutional under Zauderer.

The court further concluded that CalChamber's members' would suffer irreparable harm if new Proposition 65 enforcement actions could be filed while CalChamber's lawsuit was pending, and that this harm outweighed the State's and the public's interest in those enforcement actions. The court explained: "Because the Chamber has a 'colorable First Amendment claim,' it has demonstrated it 'likely will suffer irreparable harm' if Proposition 65 warnings against acrylamide can be enforced while this litigation is pending."

Accordingly, the court granted CalChamber's motion for a preliminary injunction, holding: "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." The court's ruling immediately halts hundreds of pending—but not yet filed—private enforcement efforts, providing much-needed relief to businesses faced with a persistent threat of civil penalties and costly litigation. The court explained, however, that its order does not alter any existing consent decrees, settlements, or other agreements related to Proposition 65 warning requirements.

The preliminary injunction was issued in California Chamber of Commerce v. Becerra, No. 2:19-cv-02019-KJM-JDP. CalChamber is represented by the authors.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.