SACRAMENTO, Calif. (Legal Newsline) - The California Chamber of Commerce is fighting a lawyer-backed science group’s attempt to stay a judicial ruling temporarily blocking lawsuits over acrylamide under California’s Proposition 65.
The Council for Education and Research on Toxics shouldn’t get a “second bite at the apple” with arguments it already lost, the Chamber argues in a recent brief it filed with U.S. District Judge Kimberly J. Mueller in Sacramento. CERT, a nonprofit that is closely aligned with plaintiff lawyers who have earned millions of dollars in fees from Prop 65 litigation, was one of the first to sue over acrylamide, a naturally occurring chemical that also forms in vegetable-based foods when they are cooked.
In her ruling late last month, Judge Mueller ordered a temporary injunction against any further lawsuits over acrylamide in food after the Chamber showed that there were no scientific studies showing it caused human cancer. Given the uncertainty, Judge Mueller said consumers would be misled by a warning that ingesting certain foods containing acrylamide cause cancer.
Despite her ruling, CERT argued for a stay based on similar arguments it presented earlier. The organization said its First Amendment right to petition the government was threatened by the injunction and the state of California also opposed it. The Chamber, in response, said “a motion for reconsideration is not an avenue for a party to repeat an argument the court has already rejected.”
The First Amendment ban on prior restraint doesn’t apply to a judicial ruling halting the enforcement of an unconstitutional law, the group said.
Likewise the court shouldn’t reconsider its ruling in light of evidence CERT presented in its suit against Starbucks which resulted in a judicial ruling requiring a Prop 65 cancer warning on coffee. The state Office of Environmental Health Hazard Assessment later changed its regulations to eliminate the need for such a warning, saying the chemicals created “in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.”
“As such, the testimony from Starbucks cannot possibly establish the truth of compelled cancer warnings for acrylamide in all food and beverage products,” the Chamber said in its filing opposing a stay.
“If anything, this testimony provides further support for the Court’s finding that there is a dispute as to whether dietary acrylamide causes cancer, and thus compelled cancer warnings for acrylamide are not `purely factual and uncontroversial.’”