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Has Proposition 65 Gone Too Far? Warning Requirements for Food Products Challenged

October 22, 2019

Companies nationwide that sell foods containing the chemical acrylamide to California consumers may find their regulatory burden lightened in the future.  On October 7, 2019, the California Chamber of Commerce (CalChamber) filed suit against the California Attorney General in the Eastern District of California to prevent the state from enforcing Proposition 65 warning requirements for foods containing acrylamide.  CalChamber’s Complaint asks the court to declare that the Proposition 65 requirement of carcinogen warnings for foods containing acrylamide constitutes false and misleading compelled speech in violation of the First Amendment, arguing that acrylamide in food has not been shown to be a human carcinogen.  The Complaint also seeks an order prohibiting the State of California and private citizen enforcers from enforcing Proposition 65 warning requirements for foods containing acrylamide.

Acrylamide is a naturally occurring compound that develops when starches and sugars are cooked at high temperatures (and therefore it is commonly found in French fries, cereal, fried snacks, toast, canned vegetables, roasted nuts, etc.); it is not intentionally added to foods.  Acrylamide has been on the Proposition 65 list of chemicals “known to [California] to cause cancer” since 1990, when it was added based on EPA’s determination that acrylamide was a “probable” human carcinogen and the International Agency for Research on Cancer’s (IARC) classification of acrylamide as “possibly carcinogenic to humans.”  California’s aggressive Proposition 65 plaintiffs’ bar largely overlooked acrylamide for years, but recently acrylamide has been the subject of numerous Proposition 65 lawsuits.  The number of Proposition 65 notices of violation filed for foods containing acrylamide has increased each year since 2015.

CalChamber’s Complaint emphasizes that both EPA’s and IARC’s classifications of acrylamide were based on animal testing, not human studies. Furthermore, CalChamber argues that current scientific evidence does not indicate that exposure to dietary acrylamide increases the risk of cancer in humans.  The Complaint goes on to discuss numerous pernicious side-effects of acrylamide being included on the Proposition 65 chemical list, impacting consumers and businesses.  One such concern is over-warning, which can dilute the effectiveness of warnings on products that do pose a risk to consumers and can erode public confidence in public health messages and authorities.  The Complaint also notes that the current safe harbor level for acrylamide does not adequately deter California plaintiffs’ attorneys; even companies that have determined the acrylamide levels in their products are below the Proposition 65 safe harbor level may find themselves dragged into court by aggressive plaintiffs’ firms.

For an introduction to Proposition 65 generally, see our prior article.

This post was drafted by Paul Jacobson, an attorney in the Kansas City, MO office of Spencer Fane LLP. For more information, visit