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Court Blocks New Acrylamide Lawsuits Under Prop 65

On March 29, 2021, the U.S. District Court for the Eastern District of California granted the California Chamber of Commerce’s (CalChamber) preliminary injunction to temporarily bar the State of California and any private litigants from enforcing Proposition 65 against businesses that do not warn consumers that acrylamide in food is known to the State of California to cause cancer.

In the lawsuit, CalChamber argued 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 and cancer risk.  The court concluded that stating acrylamide is known to cause cancer is not factual or free of controversy, as most studies suggest naturally forming acrylamide in food products does not cause cancer in humans.

By way of background, 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, 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.”

In its decision, the court stated that “if a business decides not to use the safe harbor warning, it risks expensive and lengthy litigation against private enforcers or the state, and defendants carry heavy evidentiary burdens if they attempt to show their products contain permissibly small quantities of acrylamide.”  The court clarified that the preliminary injunction has no impact on preexisting consent decrees, settlements, or other agreements related to Proposition 65 warning requirements.

© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 91
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About this Author

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...

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