Preliminary Injunction Temporarily Blocks Prop 65 Enforcement of Foods Containing Acrylamide

View our previous analysis here.

Proposition 65 requires businesses to provide warnings to Californians about significant exposures to chemicals it has determined to cause cancer, birth defects, or other reproductive harm. Since California has the sixth-largest economy in the world, manufacturers of consumer goods worldwide may be liable if they fail to abide by Proposition 65 regulations.

Acrylamide is a controversial chemical on the Proposition 65 list because it is a byproduct that can form in some foods during high-temperature cooking processes, such as frying, roasting, and baking, as the result of a reaction between a harmless amino acid and a sugar that are naturally present in many foods. Common sources of acrylamide in the human diet include, among others, breakfast cereals, crackers, cookies, coffee, French fries, potato chips, and roasted nuts.

On March 29, 2021, the US District Court for the Eastern District of California granted California Chamber of Commerce a preliminary injunction that temporarily prevents the State of California and private parties from enforcing Proposition 65 against manufacturers and distributors who do not provide a Proposition 65 warning on foods that contain acrylamide.

The court concluded in its preliminary injunction that the State of California has not sufficiently shown that acrylamide is 'known' to cause cancer and that a warning saying otherwise is controversial and not factually correct. The court also noted that, since the science on acrylamide is not yet settled, it would be misleading to require businesses to include a Proposition 65 warning on such products.

Takeaways

• This initial ruling is promising for many businesses, however, it does not impact preexisting consent decrees, settlements, or other agreements related to Proposition 65 requirements.
• Since this ruling is only a preliminary injunction and not a final ruling, the court cautioned businesses opting to not use the safe harbor warning to be mindful of the possibility of expensive and lengthy litigation should the State of California ultimately succeed in showing that acrylamide is in fact known to cause cancer.
• Businesses that manufacture or sell products in California that contain acrylamide should strongly consider continuing to adhere to the Proposition 65 regulations until a final decision is rendered.

• Lynn R. Fiorentino

  Partner
• Kailey J. Walsh

  Associate