Court Halts New Lawsuits Concerning Prop 65 Acrylamide Cancer Warnings

The U.S. District Court for the Eastern District of California granted on March 29, 2021 the California Chamber of Commerce’s (CalChamber) motion for a preliminary injunction, halting new lawsuits to enforce the Proposition 65 warning requirement for acrylamide in food and beverages. (See: California Chamber of Commerce v. Xavier Becerra, Attorney General of the State of California.)

Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, prohibits a company from knowingly exposing any individual to a listed chemical without first providing a “clear and reasonable warning” to such individual. CalChamber filed the case in October 2019, claiming that businesses have a First Amendment right that prohibits California from enforcing Proposition 65 as to acrylamide in food, as the warning for the cancer endpoint would be false and misleading compelled speech.  The injunction was granted in part because the court found that, “The State has not shown that the cancer warnings it requires are purely factual and uncontroversial.”

The Council for Education and Research on Toxics (CERT), a nonprofit organization that has filed Proposition 65 enforcement matters—including acrylamide in food, joined California as a defendant. CERT moved for summary judgement against CalChamber. In addition to granting the preliminary injunction, the court denied CERT’s motion for summary judgement and ruled, “While this action is pending and until a further order of this court, no person may file or prosecute a new lawsuit to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products.”

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