Court Finds Requiring Prop. 65 Warnings For Acrylamide In Food Is Unconstitutional

On May 2, 2025, the U.S. District Court for the Eastern District of California issued a landmark ruling in California Chamber of Commerce v. Bonta, Case No. 2:19-cv-02019, holding that Proposition 65 ("Prop. 65") warning requirements for dietary acrylamide violate the First Amendment. The court issued a permanent injunction prohibiting enforcement of Prop. 65 warnings as to the presence of acrylamide in food.

This decision delivers immediate and far-reaching relief to food manufacturers, distributors, and retailers—many of whom have long struggled with Prop. 65 enforcement threats and litigation over acrylamide in baked, fried, and roasted foods.

Background: Acrylamide, Prop. 65, and Industry Burden

Acrylamide is a chemical that forms naturally in certain plant-based foods—such as potato chips, cereals, coffee, and crackers—during high-temperature cooking. It has been on California's Prop. 65 list of chemicals "known to the state to cause cancer" since 1990.

Historically, Prop. 65 "safe harbor" warnings advised consumers that "Consuming this product can expose you to acrylamide, which is known to the State of California to cause cancer." In response to the Cal. Chamber lawsuit, the Office of Environmental Health Hazards Assessment ("OEHHA"), the state agency with Prop. 65 oversight, created several new warning options. Businesses that did not provide such warnings were subject to enforcement actions from private enforcers, potentially facing penalties of up to $2,500 per day per violation. Many companies chose to place warnings on all food products containing acrylamide because the safe harbor for cancer was set at an exceedingly low level: 0.2 µg/day. Quite a few acrylamide settlements set reformulation levels at 100 parts per billion ("ppb") which was close to impossible to achieve for many heat-treated food products. Ironically, it was suggested that food companies add synthetic laboratory-created substances to pure food products to reduce acrylamide formation to achieve compliance with these reformulation targets.

Food companies frequently applied the warnings defensively, even where acrylamide levels may have posed minimal risk, to avoid costly litigation and complex exposure assessments.

The Court's Ruling: First Amendment Trumps Compelled Warnings

In a strong opinion, the court found that all three versions of the acrylamide warning—including the recently updated versions—compelled businesses to convey a disputed and misleading message, namely, that dietary acrylamide increases cancer risk in humans. Key findings that the court made include:

• Lack of Scientific Consensus: While certain agencies have found acrylamide to be a "probable" or "likely" carcinogen based on animal studies, the court noted that human epidemiological studies do not support this conclusion. Leading institutions like the FDA, National Cancer Institute, and American Cancer Society have expressed uncertainty or found no link between dietary acrylamide and cancer in humans.
• Misleading to Consumers: Even factually accurate phrases—such as acrylamide being "probably carcinogenic to humans"—were deemed misleading in context, because they imply a real-world cancer risk from everyday food consumption without sufficient scientific backing.
• Compelled and Controversial Speech: The warnings forced companies to express a viewpoint with which they disagreed, violating their First Amendment rights.
• Alternative Means Available: The court emphasized that the State can inform consumers of potential hazards through other means, such as public health campaigns or websites, without burdening commercial speech.

What This Means for Food Manufacturers, Distributors, and Retailers

1. Prop. 65 Warnings for Acrylamide in Food Are No Longer Required

The permanent injunction bars the California Attorney General, other state officials, and private enforcers from enforcing a Prop. 65 warning as it relates to acrylamide in food. This means:

• Companies do not need to include acrylamide warnings on food products sold in California.
• Existing warnings may be removed from product packaging, websites, and point-of-sale materials.

Note: The injunction only applies to dietary acrylamide—not to industrial or occupational acrylamide exposures (e.g., in manufacturing or laboratory settings).

2. Pending and Threatened Enforcement Actions Are Now Moot

The ruling should halt all pending Prop. 65 lawsuits and notices of violation regarding dietary acrylamide. Food businesses should consider:

• Seeking dismissal or withdrawal of pending Prop. 65 litigation involving acrylamide in food.
• Notifying the Attorney General's Office or private enforcers of the injunction as a defense.
• Reviewing prior consent judgments—while not automatically voided, some consent judgments allow for revision due to this constitutional issue.

3. Broader Implications for Future Prop. 65 Cases

This decision follows prior rulings, which also held that Prop. 65 warnings for glyphosate also violated the First Amendment. Courts are now more closely scrutinizing whether mandated Prop. 65 warnings are "purely factual and uncontroversial"—a standard many warnings may not meet.

We expect this ruling to embolden other industry challenges to Prop. 65 requirements for substances with inconclusive or disputed health risks, of which there are many.

Next Steps: What Should Businesses Do Now?

• Review your product labels and websites to assess whether acrylamide warnings can be removed.
• Pause or decline to enter into settlements involving acrylamide-based claims unless explicitly re-evaluated in light of this ruling.
• If you are currently subject to an acrylamide consent judgment, consult counsel about potential modification or relief.
• Continue monitoring for OEHHA or Attorney General guidance—although enforcement is enjoined, regulatory responses may follow.
• Monitor whether the order is appealed, and assess the ramifications of such an appeal.

Conclusion

This decision marks a turning point in how California may regulate risk-based food warnings under Prop. 65. Food companies should seize this opportunity to re-assess compliance burdens and litigation risks related to acrylamide. We expect further constitutional challenges to labeling requirements based on disputed science.