In October 2019, the California Chamber of Commerce (CalChamber) filed a legal challenge to the Proposition 65 cancer warning requirement for acrylamide in food, alleging that imposing such a warning requirement violates the First Amendment. The California Attorney General, the defendant in the lawsuit, has now filed a motion to dismiss the challenge. The motion is set to be heard on December 20, 2019.
Acrylamide was listed as a Proposition 65 carcinogen in 1990 and as a reproductive toxicant in 2011. The California Office of Environmental Health Hazard Assessment (OEHHA) developed an extremely conservative no significant risk level for cancer of 0.2 micrograms per day. Acrylamide can form in high carbohydrate foods when they are heated at high temperatures. Although, as the Food and Drug Administration (FDA) points out, acrylamide probably has always been present in food, it was first detected in food – and publicized – in 2002. Since then, hundreds of Proposition 65 claims have been brought against manufacturers and sellers of foods such as coffee, potato chips, breads, cookies and cakes, notwithstanding the FDA’s position that people should not stop eating foods because of the presence of acrylamide.
Those Proposition 65 claims have resulted in significantly disparate settlement outcomes depending on which enforcer asserts the claim, in terms of maximum acrylamide levels requiring warnings for a particular food – which begs the question of whether these claims and their results really promote the public interest. Indeed, following a widely publicized court ruling requiring cancer warnings for coffee, OEHHA promulgated a regulation designed to prevent warnings for acrylamide and other carcinogens in coffee.
In its complaint, filed in the U.S. District Court for the Eastern District of California, CalChamber alleges scientific studies show that exposures to acrylamide in food do not increase the risk of cancer. Thus, requiring cancer warnings for dietary acrylamide violates the First Amendment by compelling false and misleading speech. This argument is similar to Monsanto’s and other plaintiffs’ arguments in a separate federal lawsuit challenging Proposition 65 cancer warnings for the pesticide glyphosate. CalChamber intends to file a motion for a preliminary injunction prohibiting any Proposition 65 enforcement actions involving acrylamide in food, and has requested a hearing date of February 6, 2020 for that motion.
In his pending motion to dismiss CalChamber’s lawsuit, the Attorney General argues that CalChamber’s claims are duplicative of defenses asserted in other Proposition 65 acrylamide lawsuits against manufacturers and sellers of foods, and that allowing this lawsuit to go forward will encourage forum shopping. The Attorney General argues in the alternative that the court should stay or dismiss the lawsuit in deference to pending acrylamide lawsuits, citing the Colorado River doctrine, pursuant to which the court may stay or dismiss a federal action if “exceptional circumstances” exist.
The Council for Education and Research on Toxics (CERT), a Proposition 65 private enforcer which has filed numerous acrylamide claims, is seeking to intervene in the CalChamber lawsuit and file its own motion to dismiss. CERT’s intervention motion is set to be heard on November 22, 2019, and its motion to dismiss is set for December 20, 2019, the same day as the Attorney General’s motion to dismiss.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product regulation. For knowledgeable advice and in-depth analysis on your chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].
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