SACRAMENTO, Calif. (Legal Newsline) - A federal judge has blocked lawyers from suing companies under California’s Proposition 65 over the presence of acrylamide in food, saying it is far from settled science the naturally occurring chemical causes cancer in humans.
The California Chamber of Commerce sued California in 2019, saying the state was violating the First Amendment right to freedom of speech by forcing companies to make false statements on their products or risk financially ruinous litigation. Prop 65 requires companies to list any chemicals “known to the state of California to cause cancer” on warning labels.
The law includes a “private right of action” that allows lawyers to recover legal fees if they sue companies and win.
The Council for Education and Research on Toxics joined the lawsuit on California’s side, arguing the Chamber lacked standing to block enforcement of acrylamide warnings. The nonprofit was one of the first to sue over acrylamide after it was discovered in food and is allied with private lawyers who have made millions of dollars from Prop 65 litigation.
In a 31-page decision issued March 29, U.S. District Judge Kimberly J. Mueller in Sacramento granted the Chamber’s request for a preliminary injunction against further lawsuits over acrylamide, rejecting California’s arguments and the scientific evidence of its experts. Precedent from other Prop 65 cases holds that California can only require companies to provide information that is “factual and uncontroversial,” the judge wrote.
“At this stage of the case, the State has not shown this warning is purely factual and uncontroversial,” the judge ruled.
Acrylamide forms in food that is roasted or cooked, primarily in plant-based substances like French fries, potato chips and toast. Animal studies have shown rodents fed large amounts of acrylamide can develop cancer and the International Agency for Research on Cancer (IARC), a World Health Organization group that has also classified Roundup as a probable carcinogen, found the signature for acrylamide-related mutations in about a third of tumor genomes in its cancer database.
An expert hired by CalChamber examined dozens of epidemiological studies, however, and found none showed that eating food with acrylamide increases the risk of cancer. The National Cancer Institute has come to the same conclusion. California relied on some of those same epidemiological studies to exclude coffee from its acrylamide regulations, the Chamber argued.
Given the uncertainty, Judge Mueller said consumers would be misled by a warning that ingesting certain foods containing acrylamide cause cancer. The state might get away with requiring a general warning that acrylamide can cause cancer, but it isn’t “known” that eating specific foods with the chemical causes cancer in humans.
“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,” the court concluded.
California eliminated the need for cancer warnings on coffee after epidemiological studies found drinking coffee may actually lower the risk of cancer. It has also settled acrylamide cases against manufacturers of other foods with “more nuanced warnings,” such as an agreement with Frito-Lay allowing it to say its chips contain acrylamide but it isn’t added to them and the Food and Drug Administration hasn’t advised anyone to stop eating them.
California cited a Ninth Circuit decision allowing the state to require cellphone companies to warn consumers against storing phones in their pockets while on. But that warning merely states the federal regulation on radio wave exposure, Judge Mueller wrote.
“Here, no other public health body has warned that acrylamide in food causes cancer in people or has even reached that conclusion,” she ruled. “No regulatory or public health authority has advised against consuming foods with acrylamide.”
The injunction prohibits lawyers from filing any more acrylamide lawsuits until further notice. Since the Chamber sued over the warnings, lawyers served hundreds of pre-litigation notice and filed more than 40 acrylamide lawsuits.