Ninth Circuit Offers Food Producers Relief from Prop 65 Acrylamide Lawsuits

The Ninth Circuit has reinstated an injunction on Proposition 65 claims against food products containing acrylamide, bringing a large number of food producers at least temporary relief from costly litigation. Proposition 65 (“Prop 65”) requires warnings to consumers regarding exposure to any of over 900 chemicals listed by the state as causing cancer, birth defects, or reproductive toxicity.

The Ninth Circuit in California Chamber of Commerce v. Council for Education and Research on Toxics (“CalChamber v. CERT“) upheld the District Court’s preliminary injunction against new lawsuits alleging Prop 65 violations involving acrylamide. The appellate court agreed with the lower court, finding that the required Prop 65 warning – that acrylamide is known to the state of California to cause cancer — is controversial and not purely factual. In essence, the State cannot know since the science is inconclusive and authoritative agencies disagree (the National Cancer Institute and American Cancer Society say dietary acrylamide is not likely to cause cancer, while the US Environmental Protection Agency, the US National Toxicology Program and the International Agency for Research on Cancer say it is.) 

CalChamber originally brought suit against the Attorney General, and CERT intervened in an effort to prevent an injunction from curtailing its enforcement actions. CalChamber argued that requiring businesses to make a statement that is controversial and not factual misleads the public and runs afoul of First Amendment free speech protections as “compelled speech.” As a result of the constitutional question, the likelihood that CalChamber would prevail on the merits, and other considerations, the District Court enjoined further Prop 65 acrylamide lawsuits, pending a decision on the merits. The 9^th Circuit agreed.

Acrylamide was listed as a carcinogen by the State of California over 30 years ago, but it didn’t attract much attention until publication of its discovery in food in 2002. Most had never heard of it before – it was not an ingredient or even a contaminant of ingredients, but is generated in the process of cooking certain foods. As a result, Prop 65 enforcement involving acrylamide in food has become commonplace in the last several years, with over 1,200 claims since 2016, targeting all manner of baked goods (breads, biscuits, crackers, cookies), roasted nuts and nut butters, chips (potato, tortilla and vegetable), cereals, caramel corn, coffee, and other products. Businesses have paid well over $8 million in penalties and over $20 million in plaintiffs’ attorney fees to resolve these claims.

With the ultimate outcome of CalChamber v. CERT uncertain,food companies may want to continue researching methods to reduce acrylamide in their products while awaiting the decision.