First, a bit of background:
As a general statement, Proposition 65 requires manufacturers and sellers of consumer goods, including foods, to provide warnings to customers before they purchase products if they contain one or more chemicals “known to the State of California” to either increase the risk of developing cancer, or to cause reproductive harm. As to most of the chemicals involved, if the levels contained in the product are below certain, chemical-specific and risk specific levels, warnings are not required.
Proposition 65 and Acrylamide:
The chemical most conspicuously litigated in Proposition 65 matters is acrylamide. Acrylamide is not generally a chemical that is added to products. Rather:
Acrylamide is formed mostly on the surface of plant-based foods when they are browned during frying, roasting, grilling, or baking. In general, the browner the surface, the higher the level of acrylamide.
CA.Gov, Proposition 65 website
Thus, foods that are browned, like cookies, the crust of fried chicken, hash browns, olives, roasted nuts and other foods that get brown when cooked contain elevated levels of acrylamide. The State of California, through the Office of Environmental Health Hazard Assessment (OEHHA) has found that consuming foods containing acrylamide may risk of cancer or reproductive harm.
As a result of the frequency of its occurrence in food products, acrylamide has become a favored target for the private law firms that bring cases against companies for failing to provide Proposition 65 mandated warnings. In 2020, there were some 453 Notices of Violation involving alleged acrylamide-related violations served, many of them naming multiple violators. In the first quarter of 2021 alone, there were 109 such Notices. The products involved include but are not limited to chips, crackers, biscotti, cookies and cookie dough (and that is after acrylamide has been listed as a chemical that requires warnings for some 30 years)..
Proposition 65 and coffee makes national news:
One product area not included in the recent Notices of Violation are coffee products. Roasting coffee results in acrylamide in the roasted beans which is then incorporated into brewed coffee. In 2010, a private enforcer, the Council for Education and Research on Toxics CERT), brought suit against some 90 companies that sold brewed coffee or ground coffee, ranging from Starbucks to 7-Eleven, to grocery stores selling coffee products. This private suit (on behalf of all of the citizens of California) took many years, and resulted in significant nation-wide publicity regarding Proposition 65.
In March of 2018, after substantial expert testimony, the trial Judge noted that while the defendants had produced evidence that coffee itself did not result in an increased risk of cancer, that issue was not what triggered the requirement to warn: rather, acrylamide in the product above the relevant limit resulted in the requirement of a warning, regardless of whether the evidence supported the risk stated in the warning.
In June of 2019, OEHHA issued an amendment to the Proposition 65 regulations, stating that the warnings were not required for coffee products. Apparently the agency charged with determining the warnings required to protect the citizens of California were persuaded by the evidence produced by the defendants in the coffee-related case.
Ongoing acrylamide litigation
While coffee products are no longer subject to Proposition 65 Violations, the presence of the chemical in numerous other baked or roasted food products has resulted in companies receiving Notices of Violation of Proposition 65, primarily by private enforcers.
In 2019 the California Chamber of Commerce, on behalf of its many members, filed a Federal case seeking Declaratory and Injunctive relief against the Attorney General of California (the entity ultimately charged with prosecuting violations of Proposition 65), alleging that Proposition 65’s warning requirements as to acrylamide violate the First Amendment. (California Chamber of Commerce v. Xavier Becerra, 2:19-cv-02019-KJM-EV, Cent. Dist. of CA).
The parties agreed that CERT, who had brought the 2010 case against the coffee companies, could intervene as a party defendant. Interestingly, CERT, proceeded to object to the Chamber of Commerce action because, it contended, CERT’s right to prosecute private suits against individual companies was protected by the First Amendment. (Which Amendment the defendants contended protected their right to not provide statements about acrylamide in their products.)
On August 26, 2020, the Court made rulings based on a motion to dismiss brought by the Attorney General and argued in June of 2020. The Court rejected the motions to dismiss based on lack of standing. The Court also considered and rejected a request for dismissal on the grounds that maintaining the Federal Court action would result in piecemeal litigation.(There were, at that time, some 38 cases pending in State Courts resulting from litigation of Notices of Violation). Rather, the Court noted that the numerous individual cases against individual companies for individual products was in itself piecemeal litigation, and that the encompassing claim of violation of First Amendment rights and thus the overall Federal umbrella favored maintaining the case, and potentially minimizing conflicting Court rulings.
California modifies the rules, again:
On August 4, 2020, California proposed a rule modifying the level of acrylamide that required a warning which varies for different products.
The warning requirements up to this point have been based, not on the amount of acrylamide in a given product, but rather on the resulting daily consumption level (is this something that one eats daily, or monthly?) Thus, a warning has been required if the consumption of that product would result in the intake of 0.2 micrograms/day (increasing the risk for cancer), or 140 micrograms/day (increasing the risk for reproductive harm). Determining whether a product requires a warning therefore relies on expert evaluation of whether the acrylamide level in a given product would result in an average daily consumption of acrylamide in excess of the regulated level, based on studies of average product consumption.,
The new proposal, which has been subject to comments ending May 7th, instead recognizes that the most conscientious of manufacturers cannot make some products without acrylamide resulting, and that the average daily consumption levels are such that these levels will not result in increased risk of harm.
The products thus evaluated include but are not limited to roasted almonds (included chocolate covered), bread, cookies, crackers, fried potatoes (not hash browns) prune juice, and waffles). The new regulation is not as yet finalized.
Further Court Rulings; Current Relief for Product Suppliers:
On March 31 of 2021, the Federal Court in the Chamber of Commerce suit issued a further ruling, in response to motions for summary judgment brought by the California Attorney General and CERT. In summarizing the issues, the Court noted:
The California Chamber of Commerce contends California has compelled businesses to display misleading warnings about the dangers of acrylamide, a carcinogen. It seeks a preliminary injunction barring the California Attorney General and anyone else from filing new lawsuits against businesses that do not display the warning.
The Court did review the evidence that has been produced to date regarding the potential hazards of acrylamide. It noted that, while there are animal studies that support the position that acrylamide can increase the risk of developing cancer, the studies involving humans have failed to make such a connection. Moreover, as the Court noted, the fact that OEHHA withdrew the labeling requirement for coffee products conflicted with a contention that warnings as to acrylamide in foods was required.
The Court denied the motions for summary judgment, and further fund that the Chamber of Commerce is likely to succeed in their action to eliminate the requirement to provide Proposition 65 warnings as to acrylamide in consumer goods. It thus granted the Motion for an Injunction against enforcement of Proposition 65 with regard to acrylamide. The California Attorney General’s Proposition 65 website now states:
The [Court in California Chamber of Commerce v. Becerra] order states, in pertinent part, “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. This injunction applies to the requirement that any “person in the course of doing business” provide a “clear and reasonable warning” for cancer before “expos[ing] any individual to” acrylamide in food and beverage products under California Health & Safety Code § 25249.6. It applies to the Attorney General and his officers, employees, or agents, and all those in privity or acting in concert with those entities or individuals, including private enforcers under section 25249.7(d) of the California Health & Safety Code. This order does not alter any existing consent decrees, settlements, or other agreements related to Proposition 65 warning requirements. [Emphasis added].
If you have any Proposition 65 cases pending that involve acrylamide you, at a minimum, have time to resolve the case.
If you have good faith arguments against the imposition of Proposition 65 warning requirements, that is to say not addressing the individual products levels, but rather whether the imposition of the stated levels is appropriate, that is something that can be pursued, but having other defendants to share the expense is strongly recommended.