The food and beverage industry received good news this month thanks to a ruling from the U.S. Court of Appeals for the Ninth Circuit that weakens recent carcinogen claims. The court reinstated an injunction against the filing or prosecution of new California Proposition 65-based lawsuits related to acrylamide in food and beverage products.

The ruling confirms that the science supporting acrylamide’s listing as a possible human carcinogen under Proposition 65 is shaky at best. The ruling further gives continued hope that a permanent injunction will eventually be issued in the underlying case, Cal. Chamber of Com. v. Becerra, 529 F. Supp. 3d 1099, 1123 (E.D. Cal. 2021). Such an injunction would help to address an area of easy abuse for Proposition 65 plaintiff lawyers at the moment.

California’s Proposition 65 & Acrylamide

As relevant here, Proposition 65 requires that businesses provide warnings to consumers before selling them a product that contains any one of over 900 chemicals identified by the state as capable, at certain levels, of causing cancer or reproductive harm. The California agency charged with coming up with the Proposition 65 list of chemicals is the Office of Environmental Health Hazard Assessment (OEHHA).

In 1990, OEHHA listed acrylamide under Proposition 65 as potentially causing cancer. However, acrylamide is not intentionally added to food products; it is formed naturally in many types of food when the food is cooked at high temperatures or otherwise processed with heat. Acrylamide is thus formed when food is cooked at home, in restaurants, and in food processing and manufacturing facilities. It has always been present in the foods that humans cook to eat. Such foods include breakfast cereals, crackers, bread crusts, coffee, grilled or roasted asparagus, french fries, potato chips and other fried and baked snack foods, olives, prune juice and roasted nuts, just to name a few. Acrylamide is also often found in foods such as whole grains and coffee that have been shown in human studies to actually reduce the risk of diseases including cancer.

With the Ninth Circuit’s recent decision, two courts have now agreed that there’s a likelihood that acrylamide should not have been listed under Proposition 65, because the scientific evidence fails to demonstrate that it causes cancer.

The Underlying Lawsuit Filed by the California Chamber of Commerce

In 2019, plaintiff California Chamber of Commerce (CalChamber) filed a lawsuit arguing that Proposition 65 warnings for acrylamide in food products violated its members’ First Amendment right to not be compelled to place false and misleading statements about their products. CalChamber sought to enjoin enforcers from filing or prosecuting new lawsuits to enforce the Proposition 65 warning requirements for cancer as applied to acrylamide in food and beverage products. Council for Education and Research on Toxics (CERT), a Proposition 65 plaintiff’s group, sought to intervene as a defendant.

In a lengthy ruling, the district court concluded that CalChamber provided enough evidence to establish a likelihood of success in its lawsuit. Notably, the court wrote that California’s acrylamide warning language “states without qualification that the acrylamide in the particular food identified is ‘known to cause cancer.’” Yet, noting that “dozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide,” the court opined that the truth of that statement is the subject of controversy. The court issued a preliminary injunction effectively stopping the filing of any new Proposition 65 lawsuits based on acrylamide in foods.

CERT appealed the preliminary injunction order, but the Attorney General did not. A divided motions panel of the Ninth Circuit granted in part CERT’s motion for an emergency stay of the preliminary injunction pending appeal.

The Appeals Court Upholds the Preliminary Injunction

In a similarly lengthy opinion, the Ninth Circuit confirmed that the lower court was proper in concluding that CalChamber has a likelihood of prevailing in its lawsuit. Though initially suspending the stay, the Ninth Circuit ultimately reinstated it.

Among other things, citing to “robust disagreement by reputable scientific sources,” the Ninth Circuit held the court did not abuse its discretion in concluding that a Proposition 65 warning for acrylamide in food and beverage products is controversial and misleading. Notably, the Ninth Circuit iterated statements by the American Cancer Society, the National Cancer Institute, the Food and Drug Administration, and the State of California itself that evidenced that acrylamide is not known to cause cancer in humans.

The Ninth Circuit’s unanimous decision and the reinstallation of the injunction are eagerly awaited successes not only for would-be Proposition 65 defendants whose products contain acrylamide, but across the board, as it signals courts’ unwillingness to accept unsubstantiated or disputed scientific conclusions regarding the harmful effects of a particular chemical. (CERT has filed a motion for rehearing before the Ninth Circuit. Though no one can predict whether CERT’s request will be granted, such requests are seldom granted by the Ninth Circuit.  Historically, only about 1% of such requests are granted.)

Next Steps

Though it is premature to conclude that warnings for acrylamide in food will be a thing of the past under Proposition 65, the Ninth Circuit’s ruling gives companies facing the threat of litigation or currently in litigation a very helpful tool.
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Reprinted with permission from the March 31, 2022, edition of the The Recorder^© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.