Update on Proposition 65 cases concerning acrylamide

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Acrylamide is a chemical that results, inter alia, when foods are browned in cooking, such as when foods are baked, fried, or roasted. The State of California has determined that consuming acrylamide increases the risk of cancer. That finding has resulted in the Office of Environmental Health Hazard Assessment (OEHHA) requiring warnings, pursuant to Proposition 65, of that hazard (although the amounts that trigger the warnings are somewhat in flux).

Allegations of violation of Proposition 65 have been highly litigated over the years. As noted in a previous article, the most recent prominent litigation regarding acrylamide is an action brought in Federal District Court by the California Chamber of Commerce (the Chamber”) on behalf of its members against the California Attorney General. The Chamber alleged that the requirement to warn about acrylamide in its members’ products is in violation of their First Amendment rights, because those warnings are, in the estimation of the moving parties, untrue. The parties to the case brought by the Chamber of Commerce then agreed that the Council for Education and Research on Toxics (CERT), a regular Plaintiff in Proposition 65 cases, was the more appropriate defendant. CERT then took over the defense of the case against the Chamber.

The Chamber and CERT each brought motions for summary judgment, which ask the Court to make a finding before trial or hearing of conflicting expert testimony. The District Court denied CERT’s motion for summary judgment, and further found that the Chamber of Commerce was likely to succeed in their action to eliminate the requirement to provide Proposition 65 warnings as to acrylamide in consumer goods. It therefore granted the Chamber’s Motion for an Injunction against enforcement of Proposition 65 with regard to acrylamide. You can read our previous article covering this case.

9th Circuit reverses district court ruling

CERT did not take the ruling of the District Court lying down. They brought a motion seeking an emergency stay from the District Court’s Order before the 9th Circuit Court of Appeals and, in a 2-1 Ruling on May 27th, the 9th Circuit issued an Order staying the District Court’s Order that stayed prosecution of Proposition 65 cases concerning acrylamide. (Yes, they stayed the stay.)

The issue brought to the Appellate Court was whether, given the preliminary nature of the opinion – remember, there have not yet been any facts established at trial, just allegations – did CERT make a showing that it was likely to prevail after trial?

The 9th Circuit majority noted that both sides are contending that their rights under the First Amendment are being infringed upon. The Chamber alleges that their members’ rights are being violated because they are being (if the trial court concludes they are correct) required to provide warnings that contain false information. CERT contends that barring lawsuits based on acrylamide exposure is a “prior restraint” of their free speech rights. Specifically, it alleges the decision impaired its members’ rights to “Petition for Redress”.

Moreover, as the majority noted, the Circuit Court stay on new lawsuits for Proposition 65 violations concerning acrylamide extended to any potential Plaintiff, not just CERT. Further, the 9th Circuit majority found that CERT had made a sufficient showing that it is likely to prevail on appeal. (See Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376, 390 (1973)).

The Justice who authored the dissent to the majority opinion did so, in part, because CERT had not shown that it was potentially injured, because it did not contend that it actually intended to file any Proposition 65 enforcement actions. Thus, there was just a conclusory assertion that the District Court’s preliminary injunction order threatened or impaired its First Amendment right to petition for redress.

So, despite any scientific conflicts, Notices of Violation of Proposition for acrylamide, as well as Court cases concerning same, are permissible.

Action items:

Producers and sellers of consumer goods (mostly foods) that might contain acrylamide should consult with counsel with experience in the field to determine whether their products should have a Proposition 65 Warning.