Ninth Circuit Spares Breakfast Foods, Snacks, and Other Favorite Foods From Cancer and Reproductive Toxicity Warnings

In recent years, nearly 1,000 notices of alleged Proposition 65 violations were issued by plaintiff’s attorneys for exposures to acrylamide in food without a warning. Plaintiff’s attorneys targeted cookies, crackers, cereal, bread, fried potatoes, and other foods that undergo the Maillard reaction (the chemical reaction that gives distinctive flavor and color to browned foods). Foods such as potatoes, asparagus, and coffee beans have a natural amino acid, asparagine, which when heated can form acrylamide.

The California Chamber of Commerce (the Chamber) filed a suit for declaratory and injunctive relief against the Attorney General to halt the cottage industry of litigation brought under Proposition 65 for acrylamide exposures from food. The Chamber sought to vindicate its members’ First Amendment rights not to be compelled to place false or misleading acrylamide warnings on their food products. The Council for Education & Research on Toxics (CERT), a frequent plaintiff in Proposition 65 cases, intervened, arguing the opposite: that an injunction would impose an unconstitutional prior restraint on its First Amendment rights. The district court nonetheless granted the injunction, but a divided U.S. Court of Appeals for the Ninth Circuit motions panel stayed it in part as to private enforcers. On March 17, 2022, the Ninth Circuit affirmed the district court’s broad injunction in California Chamber of Commerce v. Council for Education and Research on Toxics, No. 21-15745 (9th Cir. Mar. 17, 2022) and in doing so it lifted the earlier partial stay.

Because Proposition 65 compels commercial speech, the relevant inquiry was whether California could justify the compelled disclosure. The district court applied a three-factor test to decide that (1) the state had not shown that the safe-harbor acrylamide warning was purely factual and uncontroversial; (2) the warning was likely misleading; and (3) Proposition 65’s enforcement system can impose a heavy litigation burden on those who use alternatives to the safe-harbor warning.

The Ninth Circuit agreed that in light of the robust disagreement by reputable scientific sources about the carcinogenic effect of acrylamide in food, the district court’s ruling that the warning is controversial was not clearly erroneous. Further, the Ninth Circuit agreed that reference to a “known” carcinogen in the safe-harbor warning carries a complex legal meaning under Proposition 65 that consumers would not glean from the warning without context. Because a reasonable person might think California knows the food will increase consumers’ risk of cancer (which California stipulated that it did not, in fact, know), the Ninth Circuit held the warning to be misleading.

Finally, the Ninth Circuit agreed that Proposition 65’s enforcement regime creates a heavy litigation burden on food growers and sellers because Proposition 65 does not permit businesses to add information to the safe-harbor warning at their discretion, preventing them from explaining their views on the true dangers of acrylamide in food. Further, the Ninth Circuit found that the high cost involved in testing products to counter the Proposition 65 warning requirement disproportionately affects small businesses and appears unduly burdensome.

The Ninth Circuit ultimately concluded that CERT could not claim protection under the prior restraint doctrine because Proposition 65 acrylamide lawsuits are likely unconstitutional. The Ninth Circuit ruling does not directly apply to other pending acrylamide litigation or settlements and consent judgments entered in prior litigation. But companies with prior and existing Proposition 65 acrylamide cases should review the Ninth Circuit’s ruling and carefully consider its impact on those cases.