In a major victory for manufacturers of food and beverage products fighting acrylamide litigation under California’s Proposition 65 statute, the Ninth Circuit on March 17 upheld a preliminary injunction barring new lawsuits to enforce Prop. 65’s warning requirement for cancer as applied to acrylamide in food and beverage products, finding that the statute’s compulsory warnings are “likely misleading” and “controversial.”

Prop. 65 provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer . . . without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.”  Cal. Health & Safety Code § 25249.6.  In October 2019, California Chamber of Commerce (“CalChamber”) filed suit for declaratory and injunctive relief against the Attorney General of California, seeking to halt acrylamide litigation brought under Prop. 65.  It argued that Prop. 65’s warning requirement violated its members’ First Amendment right not to be compelled to place “false and misleading” acrylamide warnings on their food products.  Acrylamide is often found in baked or fried foods, and has also been identified in products like coffee, almonds and black olives. 

CalChamber further moved for a preliminary injunction seeking a prohibition on new lawsuits to enforce the Prop. 65 warning requirement for cancer as applied to acrylamide in food and beverage products.  The Council for Education and Research on Toxics (“CERT”) intervened as a defendant and argued that, as a private enforcer of Prop. 65, an injunction would “impose an unconstitutional prior restraint on its First Amendment rights.”  

In March 2021, U.S. District Judge Kimberly J. Mueller granted CalChamber’s motion for preliminary injunction, and barred any further suits attempting to enforce the warning requirements as applied to acrylamide in food.  In a published, 28-page unanimous opinion, the Ninth Circuit affirmed that order, holding that CalChamber was likely to succeed on the merits of its compelled speech First Amendment claim.

The panel held that given the robust disagreement by reputable scientific sources over whether acrylamide in food causes cancer in humans, the district court did not abuse its discretion in concluding that the warning was controversial.  The district court similarly did not abuse its discretion in finding the warning was misleading.  Leaving aside the scientific debate, the court held, the warning is misleading in part because the term “known” as used in the statement that acrylamide is “known to the State of California to cause cancer,” has a “complex legal meaning” that differs from what consumers would expect.  As the Ninth Circuit emphasized, “Even the State of California has stipulated that it ‘does not know that acrylamide causes cancer in humans.’”

Finally, the Ninth Circuit held that the evidentiary record supported the district court’s finding that the required warning is unduly burdensome on businesses: only the approved safe harbor warning is usable, and those businesses that attempt to use alternative warnings explaining the nuances of the scientific understanding of the risks of acrylamide in food “face the significant risk of an enforcement action under Proposition 65.”  These businesses in turn incur likely reputational damage, significant civil penalties, and burdensome expenses of testing and expert testimony to prove acrylamide levels are below the statutory “No Significant Risk Level.”

This ruling, and Judge Mueller’s forthcoming judgment on the merits, will have significant implications for pending Prop. 65 acrylamide litigation and settlements, and potentially for other listed chemicals for which there is significant scientific debate about their carcinogenicity or reproductive toxicity.  For additional updates as the case develops, please subscribe to our Inside Class Actions blog here.

Photo of Ashley Simonsen Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in…

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.