The First Amendment Halts Proposition 65 Enforcement for Acrylamide in Food and Beverages

Arnold & Porter recently won a significant victory in securing a preliminary injunction stopping new Proposition 65 acrylamide litigation involving foods and beverages based on the First Amendment of the US Constitution. This is a landmark ruling with broader implications for the future of Proposition 65 enforcement for chemicals beyond acrylamide and for a wide range of exposure scenarios.

Acrylamide has been a prime target for Proposition 65 enforcement. Since 2002, private enforcers have served more than one thousand pre-litigation notices of violation concerning acrylamide in food and beverage products, reaping millions of dollars in settlements.

Acrylamide is not intentionally added to foods; rather, it forms naturally in many foods when they are cooked at high temperatures, such as baked goods, breakfast cereal, coffee, French fries, potato chips, and roasted nuts. The Arnold & Porter team argued that the science does not support a cancer warning for acrylamide in foods, and asked the court to preliminarily enjoin enforcement of the Proposition 65 warning requirement as applied to acrylamide in foods.

On behalf of the California Chamber of Commerce (CalChamber), the firm filed a challenge in federal court alleging that Proposition 65 warnings for acrylamide in food violate the First Amendment's prohibition against compelled commercial speech under the US Supreme Court's decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), because they are not "purely factual and uncontroversial." It argued that because no agency has classified acrylamide as a known human carcinogen, and no scientific study in humans has found reliable evidence that exposure to acrylamide through the diet is associated with any risk of developing cancer, Proposition 65 warnings for acrylamide in food do not meet the standard set out in Zauderer.

The court granted the motion for a preliminary injunction, reasoning that in the case of acrylamide in food, the Proposition 65 "safe harbor warning is controversial because it elevates one side of a legitimately unresolved scientific debate about whether eating foods and drinks containing acrylamide increases the risk of cancer."

The court's ruling stops hundreds of enforcement actions in their tracks, bodes well for the ultimate end of Proposition 65 acrylamide lawsuits, and has implications for other listed chemicals.

The preliminary injunction was issued in California Chamber of Commerce v. Becerra, No. 2:19-cv-02019-KJM-JDP. CalChamber is represented by Trent Norris, Zachary Fayne, Sarah Esmaili, and David Barnes.

A more detailed discussion of the ruling and its impact is available in Arnold & Porter's recent Advisory.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.