California's Prop 65: Acrylamide Update

By Sophia Castillo, partner, Downey Brand and Patrick Veasey, senior associate, Downey Brand

The alleged acrylamide content of various foods has been the subject of much litigation seeking to enforce California’s Proposition 65.  Prop. 65 requires “clear and reasonable warnings” on products sold in California if use of the products causes exposure to chemicals on the Prop. 65 List.  (See Title 27, California Code of Regulations, §§ 25600 et seq.)  Prop. 65 also gives interested citizen plaintiffs a private right of action to enforce these claims and recover their attorneys’ fees if they are successful.

The Office of Environmental Health Hazard Assessment added acrylamide to the Prop. 65 list in 1990.  Acrylamide is a chemical that forms in certain types of food when exposed to high-temperature cooking such as frying, roasting, or baking.  Acrylamide is found mainly in foods made from plants, such as potato and grain products.  OEHHA has set the safe harbor limit for cancer for acrylamide at 0.2 (µg/day) and reproductive toxicity for acrylamide at 140 (µg/day). This low safe harbor limit has invited a host of Prop. 65 notices and corresponding, and expensive, litigation in California courts alleging that Prop. 65 warning labels are required for certain foods that are fried, roasted and/or baked.

Acrylamide Litigation – California Chamber of Commerce v. Bonta

In October 2019, the California Chamber of Commerce initiated litigation in federal court in the Eastern District of California alleging that Prop. 65’s warning requirements that acrylamide cause cancer violated the First Amendment because the State does not “know” that consuming food containing acrylamide causes cancer in humans.  The Cal. Chamber initiated this litigation against the State of California, and a citizen plaintiff group called Council for Education and Research On Toxics intervened in the case.  CERT has litigated various acrylamide citizen suits in the past.

On March 30, 2021, the Cal. Chamber prevailed on a motion it filed asking the Court to bar the California Attorney General and anyone else from filing new lawsuits against businesses that do not display a Prop. 65 warning for acrylamide, which the district court granted via a preliminary injunction.  (See Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019 (E.D. Cal. March 30, 2021).)  In its ruling granting the preliminary injunction, the Court pointed to the dozens of epidemiological studies that failed to establish a link between consumption of acrylamide in food and cancer in humans.  The Court determined that the “State has not shown that the cancer warnings it requires are purely factual and uncontroversial.”  The Court further determined that the Cal. Chamber successfully demonstrated that it would suffer irreparable harm if the injunction was not granted given the steep rise of Prop. 65 litigation involving acrylamide in the last several years.

Shortly thereafter, on April 21, 2021, CERT appealed the case to the Ninth Circuit Court of Appeals, alleging that the preliminary injunction violated CERT’s right under the First Amendment to petition the government for the redress of grievances.  (See Cal. Chamber of Commerce v. Bonta, Case No. 21-15745 (9th Cir.).)  The State of California has not taken a position on the appeal.  The Ninth Circuit stayed the preliminary injunction pending a decision on the merits of CERT’s appeal.  Although the parties have filed several procedural motions before the Ninth Circuit, including a motion to dismiss the appeal, on August 11, 2021, the Ninth Circuit denied the motion to dismiss, but reserved the right to address these and other related  issues when it reviews the merits of the case.  Oral argument in the Ninth Circuit is now expected to take place in December 2021 or early next year.

Summary

The pending litigation before the Ninth Circuit may ultimately provide a respite for food and beverage producers and suppliers from the Prop. 65 acrylamide litigation that has become so common in the last several years.  And if the Cal. Chamber is successful in its challenge, Prop. 65 notices and litigation for acrylamide may cease altogether.  For the time being, however, Prop. 65 claims and notices by citizen plaintiff’s groups continue because the Ninth Circuit stayed the preliminary injunction entered by the lower court pending its formal evaluation of the issues on appeal.  The California Attorney General’s website provides a discussion regarding the status of the acrylamide litigation.

Sophia Castillo is a partner in the San Francisco office of Downey Brand.  She specializes in Proposition 65 and toxics law, and publishes an overview of Prop. 65 claims and trends each month with her colleague Patrick Veasy.  Sophia can be reached at scastillo@downeybrand.com, or via her LinkedIn page.

Patrick Veasy is a senior associate in Downey Brand’s Sacramento office.  Patrick routinely works on matters involving water quality, environmental site remediation issues, and toxic tort litigation, including under Proposition 65.  Patrick can be reached at pveasy@downeybrand.com, or via his LinkedIn page.