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Do You Want Fries With That?

The old joke of “what do Philosophy majors ask at their first job?” takes on a new meaning in the world of Prop 65.

On October 7, 2019, the California Chamber of Commerce filed a lawsuit in  Federal court for the Eastern District of California (Complaint) challenging Proposition 65 warnings for food that contain the chemical Acrylamide.  The Complaint seeks declaratory relief in asking the court to rule that the Proposition 65 warnings required for cancer applicable to Acrylamide in food products violate the First Amendment and the complaint is asking the court to issue an injunctive relief order prohibiting the State of California and private citizen enforcers (aka “bounty hunters”) from enforcing Proposition 65 warning requirements with respect to any food products.

The Complaint recites a litany of issues with Acrylamide being a Proposition listed chemical, many of these issues were addressed in the Acrylamide coffee cases that we have previously addressed (see here and here).  The issue of Proposition 65 warnings regarding acrylamide is a real one for food producers.  The number of Notices of Violations (NOVs) being filed is ever increasing: in 2016, 32 (NOVs), in 2017, 144 (NOVs), in 2018, 147 (NOVs) and in 2019 (to date) 174 NOVs). 

The Chamber lawsuit is another chapter in the Proposition 65 saga.  Earlier this year, OEHHA (the CA state agency tasked with listing Proposition 65 chemicals), issued a regulation clarifying that exposure to Acrylamide, along with some other chemicals in “ready-to-brew” coffee did not pose a cancer risk (27 CCR 25704).

In February 2018 a EDCA court issued a preliminary injunction prohibiting California from requiring “false and misleading Proposition 65 labeling for the herbicide glyphosate (see 309 F. Supp. 3d 842 (2018) and our prior posts on this issues herehere and here).

One doesn’t need to be a philosophy major to understand that acrylamide in food will impact the fundamental nature of the knowledge, reality and existence of Proposition 65.

We will continue to follow and report on these issues.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume IX, Number 284


About this Author

Daniel Herling, product liability, attorney, Mintz Levin, Consumer Product Safety Privacy & Cybersecurity Class Action Health Care Enforcement & Investigations Product Liability & Complex Tort Complex Commercial Litigation

Dan is highly regarded for his defense of product liability cases involving consumer products and deep knowledge of California’s consumer protection regulations and laws. He skillfully handles litigation, including class actions, around California’s Unfair Competition Law, Consumer Legal Remedies Act, and Safe Drinking Water and Toxic Enforcement Act (Prop 65), among others. He has served as a defense counsel in over 3,000 product liability cases involving pharmaceuticals, medical devices, food, cosmetics, over-the-counter drugs, and food and products marketed as containing natural...