Appeals court to hear Prop 65 ruling involving acrylamide in food

A federal court in Sacramento, Calif. has barred the state’s Attorney General from filing new lawsuits to enforce a requirement for a cancer-related warning involving acrylamide in food and beverages.

In an order dated March 29, Chief U.S. District Judge Kimberly Mueller entered a preliminary injunction that applies to the AG and its employees, as well as private entities that want to enforce Proposition 65.

Lawyers whose firm represented the plaintiff in the case—the California Chamber of Commerce—lauded the decision.

“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,” Arnold & Porter attorneys Sarah Esmaili and Vanessa Adriance wrote in a blog.

Raphael Metzger, an attorney who represents the Council for Education and Research on Toxics (CERT), said his law firm has appealed the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit. CERT intervened in the case as a defendant and has filed many lawsuits under Prop 65, which became law in November 1986 and is also known as the Safe Drinking Water and Toxic Enforcement Act of 1986.

The office of California Attorney General Rob Bonta is not appealing the case since the deadline for filing an appeal passed Thursday, according to Trent Norris, an Arnold & Porter lawyer in San Francisco, who represented the California Chamber of Commerce. That same day, however, an organization that is not presently a party to the case—Chemical Toxin Working Group Inc. (CWTG), a private enforcer of Prop 65—requested permission in the U.S. District Court to file an appeal of Mueller’s order to the Ninth Circuit.

Prop 65 requires businesses to provide warnings to Californian residents about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm. Many businesses—including those in the food and beverage sector—are not especially fond of the law because it’s frequently the source of demand letters and litigation from private plaintiffs over cancer warnings.

“Acrylamide has been a prime target for Proposition 65 enforcement,” Esmaili and Adriance wrote. “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 was first found in food in 2002; it may occur naturally and forms due to a reaction between sugars and asparagine—an amino acid that naturally occurs in many foods, according to Mueller’s 31-page court order. The judge, who presides over the U.S. District Court for the Eastern District of California, pointed to an unresolved scientific debate whether acrylamide increases the risk of cancer in humans.

Mueller held the state of California failed to establish the Prop 65 warnings about acrylamide in food are constitutional under a First Amendment case decided in 1985 by the nation’s highest court. In Zauderer v. Office of Disc. Counsel, the U.S. Supreme Court established the rule that government-compelled disclosures in commercial speech must be factual and non-controversial.

“In short, the 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,” Mueller wrote in her order. “The state has not carried its burden to show Proposition 65 warnings about acrylamide in food are constitutional under Zauderer.”

Mueller also found the California Chamber of Commerce is likely to show a Prop 65 acrylamide warning falls short of another First Amendment test articulated by the Supreme Court in another case, Central Hudson Gas & Elec. v. Public Svc. Comm'n.

The safe harbor warning “implies misleadingly that the science about the risks of food-borne acrylamide is settled,” Mueller wrote. “In setting the statewide rules applicable to all, state regulators have also rejected alternative, less controversial language than the safe harbor language. If a business decides not to use the safe harbor warning, it risks expensive and lengthy litigation against private enforcers or the state, and defendants carry heavy evidentiary burdens if they attempt to show their products contain permissibly small quantities of acrylamide.”

Although Mueller granted the California Chamber of Commerce’s motion for a preliminary injunction, she described the requested injunction as “quite narrow.”

“It leaves private parties and the state with many tools for increasing public awareness about the risks of acrylamide in foods,” she wrote. “CERT and other private enforcers can send demand letters and notices of violation. They can litigate existing claims and pursue appeals.”

The judge added her “order does not alter existing consent decrees, settlements or other agreements.” For instance, she explained, a business that previously agreed to display a certain warning related to acrylamide cannot take it down.

According to the California Chamber of Commerce, local businesses have been compelled to provide Prop 65 warnings on food and beverages, based on unproven science and the expense of litigation.

The recent “ruling vindicates the bedrock requirement that, before requiring anyone, including businesses, to say something they disagree with, the government must ensure that the statement is purely factual and non-controversial,” the chamber stated in a March 30 press release. “Prop 65 warnings for acrylamide in food do not meet that standard.”

Bonta’s office did not respond to a request for comment on the ruling.

In her order, Mueller also denied a motion by CERT for summary judgment. The Ninth Circuit this week issued an expedited briefing schedule for an appeal in the case, according to Metzger.

CERT believes Mueller shouldn’t have granted the preliminary injunction because, in part, “the order itself constitutes an unconstitutional prior restraint on CERT’s free speech and petition rights under the First Amendment,” Metzger told Food & Beverage Insider.

Mueller had rejected CERT's argument about prior restraint.

"An injunction barring enforcement through litigation would admittedly dull the teeth of a demand letter or notice for the injunction's duration," she wrote in her order. "Without a legal threat, a recipient may not negotiate or even respond. But the injunction the Chamber requests today would not forbid letters and demands, so it would not be a prior restraint on speech." 

According to Norris, CERT was unable to produce legal authority to show the requested injunction—barring the filing of new Prop 65 lawsuits over acrylamide in food and beverages—constitutes a prior restraint on the group’s First Amendment rights.

“No court has ever agreed with them on that, and when asked for authority on that point, they have none,” Norris said in an interview.

Beyond the prior restraint argument, Metzger said the judge did not address the testimony of several senior scientists from federal agencies introduced at a three-month trial in 2014. Following the trial, a Los Angeles court “rejected the very [First Amendment] claim [being] asserted by the California Chamber of Commerce in this case,” according to CERT's attorney.

In a "statement of decision on trial" published in 2015, L.A. County Superior Court Judge Elihu M. Berle rejected the defendants’ argument that a Prop 65 warning for acrylamide in coffee would violate their First Amendment rights.

“We are confident that the Ninth Circuit will reverse the preliminary injunction,” Metzger said.

Berle’s ruling “is by no means a searching review of the legal or factual issues, in contrast to Judge Mueller’s decision,” and it was made “moot” thanks to a subsequent state regulation that exempts coffee from Prop 65 warnings for heat-formed chemicals like acrylamide, Norris said in an email.

In the interview, the chamber's lawyer stressed the testimony of CERT’s scientific experts doesn’t change the fact that a controversy remains whether acrylamide in food causes cancer in humans.

“Regardless of what information CERT submits to the court making its point about its side of the controversy, the fact remains that there is a controversy,” Norris said. “The district court does not need to decide that controversy under the First Amendment standard. The district court just needs to decide that there is a controversy—and that’s pretty easy in this case.”