May 26, 2020

May 26, 2020

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California Chamber of Commerce Challenges Proposition 65 Warnings for Acrylamide

On October 7, 2019, the California Chamber of Commerce (“CalChamber”) filed suit in federal court against the California Attorney General, Xavier Becerra, to block the state from enforcing Proposition 65 warning requirements on foods containing acrylamide.  Acrylamide is a naturally occurring compound that develops when starches and sugars are cooked at high temperatures.  According to California’s Office of Environmental Health Hazard Assessment (OEHHA), it is present in foods including “French fries, potato chips, fried and baked snack foods, roasted asparagus, canned sweet potatoes and pumpkin, canned black olives, roasted nuts, roasted grain-based coffee substitutes, prune juice, breakfast cereals, crackers, some cookies, bread crusts, and toast.”

CalChamber is arguing that warnings for acrylamide constitute false and misleading compelled speech that violates the First Amendment of the United States Constitution because there is a lack of reliable scientific evidence suggesting a causal relationship between acrylamide in food products and cancer risk.  CalChamber also argues that Proposition 65 warnings for acrylamide will result in over-warning, which will dilute the effectiveness of warnings on other products that do pose a risk of harm to consumers.

Acrylamide has been on the Proposition 65 chemicals list since 1990 but was not a focus for enforcement in food products until recent years.  CalChamber hopes that this lawsuit will reduce unnecessary fear for consumers and reduce litigation threats for businesses.

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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...