California's Newly Adopted "Safe Harbor" Warning Label For Acrylamide In Foods Turns Up The Heat In Ongoing First Amendment Challenge To Proposition 65

• Published date: 16 December 2022
• Subject Matter: Environment, Environmental Law
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Taryn McPherson, Whitney Jones Roy and Jeffrey J. Parker

California has approved a new, alternative "Safe Harbor" warning label for foods containing acrylamide, a naturally-occurring byproduct that occurs during high-heat cooking. Whether the new regulation moots the California Chamber of Commerce's ("CalChamber") ongoing legal battle against Proposition 65 ("Prop 65") warning labels¹ remains to be seen.

What is Proposition 65?

Prop 65 provides that "[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer . . . without first giving clear and reasonable warning to such individual."

Prop 65 warnings have become increasingly familiar to Californians since the measure's enactment in 1986; they can be found on food and beverages, in elevators, on household products and furniture, and even on packaging for clothing and accessories.

What is Acrylamide?

Acrylamide is a substance that forms through a natural chemical reaction in certain plant-based foods during high-temperature cooking, and can be found in foods like potato chips, bread, grilled vegetables, nuts, crackers, and olives. There is conflicting evidence regarding the risk it poses to humans. While studies exposing laboratory rats and mice to high levels of acrylamide have been shown to produce cancer, other studies have found no consistent evidence that dietary acrylamide increases the risk of cancer in humans.²

CalChamber v. Becerra: California Chamber of Commerce Challenges Prop 65 Warning Labels on First Amendment Grounds

Whether businesses are required to provide a Prop 65 warning for acrylamide is currently the subject of an ongoing legal battle between CalChamber and the Attorney General of California and private enforcer Council for Education and Research on Toxics ("CERT"). In 2019, CalChamber filed suit for declaratory and injunctive relief against the Attorney General of California on First Amendment grounds, arguing that its members should not be compelled to include Prop 65 warning labels, which it alleges are false and misleading in connection with acrylamide, on their products. CERT intervened and argued that an injunction would impose an unconstitutional prior restraint on its First Amendment rights. The district court granted a preliminary injunction, finding that CalChamber was likely to succeed on the merits because neither the State nor CERT had shown that acrylamide in food poses a "purely factual and uncontroversial" cancer risk. The court also...