This Blog Post May Cause Cancer In California

• Published date: 20 May 2022
• Subject Matter: Environment, Consumer Protection, Food, Drugs, Healthcare, Life Sciences, Energy and Natural Resources, Environmental Law, Chemicals, Product Liability & Safety, Food and Drugs Law
• Law Firm: Wiley Rein
• Author: Jeremy J. Broggi

This blog post is "known to the State of California to cause cancer." Just kidding. But you probably know many things that California does put into this category-playground equipment, bathing suits, coffee, wooden furniture, umbrellas, shoes, even Disneyland.

California's ubiquitous warning labels stem from a statute commonly known as Proposition 65. Under Proposition 65, "[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."¹ The California state agency charged with enforcing Proposition 65 provides a "safe harbor" warning label for products that include chemicals the agency (or others) believe to be carcinogenic.² Businesses who omit these labels from their products may be subject to significant penalties, including through private-party enforcement actions.

The Ninth Circuit recently held that the Proposition 65 warning label violates the First Amendment as applied to acrylamide in food and beverage products. ³ Acrylamide is a chemical that can form in some foods during high temperature cooking processes, such as frying, roasting, and baking.⁴ California added acrylamide to its Proposition 65 list in 1990 "because studies showed [acrylamide] produced cancer in laboratory rats and mice."⁵ However, a link to cancer in humans was not clearly shown, and the business organization challenging the warning alleged a First Amendment right to not be compelled to place false and misleading acrylamide warnings on their food products.

There was no dispute in the Ninth Circuit litigation that Proposition 65 compels commercial speech. Thus, the question in the case was whether California could justify the First Amendment burden under the standard articulated by the Supreme Court in Zauderer. ⁶ Under that test, California was obligated to show that the Proposition 65 warning for acrylamide in food and beverage products was "purely factual," "noncontroversial," and "not unjustified or unduly burdensome."⁷

California failed to meet this burden on all three counts. First, the Ninth Circuit found the Proposition 65 warning "controversial" because it takes sides in a "legitimat[e]" "scientific debate over whether acrylamide in food causes cancer in humans."⁸ In reviewing that debate, the Ninth Circuit placed great weight on the fact that "reputable scientific sources"-such as the American Cancer Society and the National...