Ninth Circuit Declines En Banc Review of Acrylamide Decision

The Ninth Circuit has denied the Council for Education and Research on Toxics’ petition for an en banc reconsideration of a March 2022 decision upholding a preliminary injunction on enforcing mandated warnings on products containing acrylamide under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Cal. Chamber of Com. v. Council for Education and Research on Toxics, No. 21-15745 (9th Cir., entered October 26, 2022). The order denying the rehearing is brief, but one circuit judge issued a statement respecting the denial but asserting that the court should have granted the petition for rehearing.

“The right to access the courts is one of ‘the most precious of the liberties safeguarded by the Bill of Rights.’ [] But in this opinion, without basis in law or precedent, this Court narrows that fundamental right. The panel opinion closes the courtroom doors to all those seeking to enforce provisions of California’s Proposition 65 with respect to a chemical present in a wide range of food products—on pain of contempt. In doing so, the panel opinion expands the so-called ‘illegal objective’ exception far beyond any prior decision of the Supreme Court or the appellate courts: it allows a single judge to enjoin potential plaintiffs from filing any sort of lawsuit if the judge predicts that the lawsuits will fail upon a defense grounded in a federal right.”