Preliminary Injunction Upheld on New Prop 65 Acrylamide Lawsuits for Foods

The U.S. Ninth Circuit Court of Appeals upheld a preliminary injunction to temporarily bar new lawsuits challenging Proposition 65 warnings for acrylamide in food and beverages. The preliminary injunction was issued on March 29, 2021 by the U.S. District Court for the Eastern District of California. It granted the California Chamber of Commerce’s (CalChamber) request to temporarily bar the state and any private litigants from enforcing Proposition 65 against businesses that do not warn consumers that acrylamide in food products 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 Proposition 65 cancer warning for acrylamide in food is “purely factual and uncontroversial.”

In a unanimous opinion filed March 17, 2022, the appellate court ruled against CERT, the sole applicant challenging the preliminary injunction on appeal, in upholding the district court’s injunction. Based 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. The appellate court noted that 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 U.S. National Toxicology Program, and the U.S. 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. In a previous lawsuit, CERT was defeated in a Proposition 65 case over acrylamide in coffee after California’s Office of Environmental Health Hazard Assessment (OEHHA) finalized a regulation, stating that exposure to acrylamide created during the roasting or brewing process does not pose a significant risk of cancer.