Acrylamide, a Proposition 65-listed substance that naturally forms in the cooking and heating of many plant-based foods, has been the focus of court action over the past six years. However, companies will no longer be required to warn for dietary acrylamide exposures pursuant to a ruling of a California federal court in California Chamber of Commerce v. Rob Bonta, U.S. District Court for the Eastern District of California Case No. 2:19-cv-02019-DJC-JDP.
Proposition 65, officially referred to as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a “clear and reasonable” warning before exposing individuals in California to any listed chemical that may cause cancer or reproductive harm. Potential penalties for failing to comply can be steep—up to $2,500 per day for each violation. Non-compliant businesses may face enforcement actions, penalties, and attorney fees. Companies had been targeted by enforcers for failing to include a Proposition 65 warning on dietary products containing acrylamide such as chips, bread, and cereal.
In 2019, the California Chamber of Commerce challenged that requirement on constitutional grounds, arguing that the link between dietary acrylamide and cancer is not strong enough to justify compelling businesses to include such warnings on their food products.
In an order issued last week, the court found that Proposition 65 warnings for dietary acrylamide are misleading and controversial because the science is unclear as to whether acrylamide is a human carcinogen. The court found that companies should not be compelled in violation of the First Amendment to espouse the view that acrylamide causes cancer despite the scientific disagreement. On that basis, the court found that requiring warnings as to dietary acrylamide is unconstitutional and permanently enjoined enforcement for the dietary acrylamide Proposition 65 warning requirements. Whether that order will be appealed remains to be seen.
Not only will this case impact companies that currently have acrylamide warnings on their products, we expect the industry to use this playbook in future challenges when the science about the effects of the Proposition 65 chemical at issue are unclear.
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