The First Amendment Halts Proposition 65 Enforcement For Acrylamide In Food And Beverages – Food, Drugs, Healthcare, Life Sciences

Will Kreznick

United States: The First Amendment Halts Proposition 65 Enforcement For Acrylamide In Food And Beverages 24 April 2021 Arnold & Porter To print this article, all you need is to be registered or login on Mondaq.com. Arnold & Porter recently won a […]


United States:

The First Amendment Halts Proposition 65 Enforcement For Acrylamide In Food And Beverages


To print this article, all you need is to be registered or login on Mondaq.com.

Arnold & Porter recently won a significant victory in
securing a preliminary injunction stopping new Proposition 65
acrylamide litigation involving foods and beverages based on the
First Amendment of the US Constitution. This is a landmark ruling
with broader implications for the future of Proposition 65
enforcement for chemicals beyond acrylamide and for a wide range of
exposure scenarios.

Acrylamide has been a prime target for Proposition 65
enforcement. Since 2002, private enforcers have served more than
one thousand pre-litigation notices of violation concerning
acrylamide in food and beverage products, reaping millions of
dollars in settlements.

Acrylamide is not intentionally added to foods; rather, it forms
naturally in many foods when they are cooked at high temperatures,
such as baked goods, breakfast cereal, coffee, French fries, potato
chips, and roasted nuts. The Arnold & Porter team argued that
the science does not support a cancer warning for acrylamide in
foods, and asked the court to preliminarily enjoin enforcement of
the Proposition 65 warning requirement as applied to acrylamide in
foods.

On behalf of the California Chamber of Commerce (CalChamber),
the firm filed a challenge in federal court alleging that
Proposition 65 warnings for acrylamide in food violate the First
Amendment’s prohibition against compelled commercial speech
under the US Supreme Court’s decision in Zauderer v. Office
of Disciplinary Counsel
, 471 U.S. 626 (1985), because they are
not “purely factual and uncontroversial.” It argued that
because no agency has classified acrylamide as a known human
carcinogen, and no scientific study in humans has found reliable
evidence that exposure to acrylamide through the diet is associated
with any risk of developing cancer, Proposition 65 warnings for
acrylamide in food do not meet the standard set out in
Zauderer.

The court granted the motion for a preliminary injunction,
reasoning that in the case of acrylamide in food, the Proposition
65 “safe harbor warning is controversial because it elevates
one side of a legitimately unresolved scientific debate about
whether eating foods and drinks containing acrylamide increases the
risk of cancer.”

The court’s ruling stops hundreds of enforcement actions in
their tracks, bodes well for the ultimate end of Proposition 65
acrylamide lawsuits, and has implications for other listed
chemicals.

The preliminary injunction was issued in California Chamber
of Commerce v. Becerra
, No. 2:19-cv-02019-KJM-JDP. CalChamber
is represented by Trent Norris, Zachary Fayne, Sarah Esmaili, and
David Barnes.

A more detailed discussion of the ruling and its impact is
available in Arnold & Porter’s recent Advisory.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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