A California federal court has ruled that the state “has not shown that the cancer warnings it requires are purely factual and uncontroversial” or “that Proposition 65 imposes no undue burden on those who would provide a more carefully worded warning.” Cal. Chamber of Com. v. Becerra, No. 19-2019 (E.D. Cal., entered March 29, 2021). The California Chamber of Commerce filed a lawsuit seeking to enjoin new lawsuits from enforcing the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) against foods that contain acrylamide. The court considered evidence on the toxicity of acrylamide, finding that “some evidence does support such an inference” that eating food with acrylamide will increase a person’s risk of cancer, but “dozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide. Nor have public health authorities advised people to eliminate acrylamide from their diets. They have at most voiced concern.”

“The problems posed by the safe harbor warning could have been avoided,” the court held. “The State could allow businesses to explain that acrylamide forms naturally when some foods are prepared. It could permit businesses to say that California has listed acrylamide as a chemical that ‘probably’ causes cancer or is a ‘likely’ carcinogen or that the chemical causes cancer in laboratory animals. It could permit businesses to say that acrylamide is commonly found in many foods and that neither the federal government nor California has advised people to cut acrylamide from their diets.”

“[T]he State has not shown that the safe-harbor acrylamide warning is purely factual and uncontroversial, and Proposition 65’s enforcement system can impose a heavy litigation burden on those who use alternative warnings,” the court ruled. Further, Prop. 65 “does not permit businesses to add information to the required warning at their discretion, and thus prevents them from explaining their views on the true dangers of acrylamide in food. That prohibition exacerbates the effect of the warning. It threatens to ‘drown out’ a business’s ‘messaging’ addressing the claimed dangers of acrylamide in food.”

“The court thus concludes the Chamber of Commerce is likely to show the acrylamide warning required by Proposition 65 is controversial and not purely factual.” The court granted the California Chamber of Commerce’s motion for a preliminary injunction and denied co-defendant Council for Education and Research on Toxics’ motion for summary judgment.

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