Prop 65 Bounty Hunters Barred From Filing Acrylamide Lawsuits Based On First Amendment – Energy and Natural Resources – United States – Mondaq News…

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In a landmark ruling with implications for the future ofProposition 65 enforcement, the US District Court for the EasternDistrict of California has preliminarily enjoined any person fromfiling or prosecuting lawsuits seeking cancer warnings foracrylamide on food and beverage products sold in California. Theruling stops hundreds of enforcement actions in their tracks, bodeswell for the ultimate end of Proposition 65 acrylamide lawsuits,and has implications for other listed chemicals.

The California Office of Environmental Health Hazard Assessment(OEHHA) added acrylamide to the Proposition 65 list of carcinogensin 1990, but acrylamide was not detected in foods until 2002.Acrylamide is not intentionally added to food products but isformed naturally when some foods are cooked or otherwise processedwith heat. Common sources of acrylamide in the human diet includebreakfast cereals, coffee, crackers, whole grains breads, roastedasparagus, roasted nuts, and prune juice. The near-ubiquitousnature of the chemical in everyday food and beverage products hasmade it a prime target for Proposition 65 enforcement. Since 2002,private enforcers have served more than one thousand pre-litigationnotices of violation concerning acrylamide in food and beverageproducts, reaping millions of dollars in settlements.

In October 2019, the California Chamber of Commerce (CalChamber)filed a lawsuit against the California Attorney General in federaldistrict court challenging the Proposition 65 warning requirementfor cancer as applied to acrylamide in food and beverage products.CalChamber alleges that these compelled warnings are not"purely factual and uncontroversial" and thus violate theFirst Amendment prohibition against compelled commercialspeech.

After amending its pleadings and surviving a motion to dismiss,CalChamber sought a preliminary injunction prohibiting the AttorneyGeneral and private enforcers of Proposition 65 from filing orprosecuting new lawsuits to enforce the warning requirement forcancer as applied to acrylamide in food and beverage products.CalChamber argued that under the US Supreme Court's decisioninZauderer v. Office of Disciplinary Counsel, 471U.S. 626 (1985), the government cannot compel commercial speakersto disclose information about their products that is not"purely factual and uncontroversial." CalChamber arguedthat a warning that acrylamide in food is "known to the Stateto cause cancer" is not purely factual and uncontroversial,because no governmental or scientific agency has classifiedacrylamide as a "known" human carcinogen, and scientificstudies in humans have found no reliable evidence that exposure toacrylamide through the diet is associated with any risk ofdeveloping cancer. CalChamber presented expert testimony from anepidemiologist and a toxicologist, and a key state scientistadmitted that California does not know that acrylamide causescancer in humans.

The court agreed that CalChamber was likely to succeed on themerits, holding that "[a]t this stage of the case, the Statehas not shown this warning is purely factual anduncontroversial." The court reasoned that although there wassome evidence to support an inference that acrylamide increases therisk of cancer in humans (such as laboratory experiments in miceand rats), "dozens of epidemiological studies have failed totie human cancer to a diet of food containing acrylamide," andthe Proposition 65 "safe harbor warning is controversialbecause it elevates one side of a legitimately unresolvedscientific debate about whether eating foods and drinks containingacrylamide increases the risk of cancer."

The court also rejected the Attorney General's argument thatCalifornia businesses were free to use an alternative warning toavoid the constitutional infirmity, reasoning that the State couldnot "put the burden on commercial speakers to draft a warningthat both protects their right not to speak and complies withProposition 65." Thus, the court explained: "If the seasbeyond the safe harbor are so perilous that no one risks a voyage,then the State has either compelled speech that is not purelyfactual, or its regulations impose an undue burden." In eithercase, the court concluded, the State had not carried its burden toshow that Proposition 65 warnings for acrylamide in food areconstitutional underZauderer.

The court further concluded that CalChamber's members'would suffer irreparable harm if new Proposition 65 enforcementactions could be filed while CalChamber's lawsuit was pending,and that this harm outweighed the State's and the public'sinterest in those enforcement actions. The court explained:"Because the Chamber has a 'colorable First Amendmentclaim,' it has demonstrated it 'likely will sufferirreparable harm' if Proposition 65 warnings against acrylamidecan be enforced while this litigation is pending."

Accordingly, the court granted CalChamber's motion for apreliminary injunction, holding: "While this action is pendingand until a further order of this court, no person may file orprosecute a new lawsuit to enforce the Proposition 65 warningrequirement for cancer as applied to acrylamide in food andbeverage products." The court's ruling immediately haltshundreds of pendingbut not yet filedprivateenforcement efforts, providing much-needed relief to businessesfaced with a persistent threat of civil penalties and costlylitigation. The court explained, however, that its order does notalter any existing consent decrees, settlements, or otheragreements related to Proposition 65 warning requirements.

The preliminary injunction was issued inCaliforniaChamber of Commerce v. Becerra, No. 2:19-cv-02019-KJM-JDP.CalChamber is represented by the authors.

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