SAN FRANCISCO (Legal Newsline) - The Ninth Circuit Court of Appeals upheld a federal court injunction against lawsuits accusing companies of failing to warn consumers about the cancer risk of acrylamide, agreeing with the trial court that the science was questionable enough that warning labels could mislead consumers.
The California Chamber of Commerce sought the injunction against the California Attorney General and private groups to halt lawsuits over acrylamide, a naturally occurring compound that appears in roasted foods, coffee and French fries. While California regulators consider acrylamide to be a potential carcinogen based on animal studies, the National Cancer Institute and the Food and Drug Administration say there’s no solid evidence acrylamide in foods causes cancer.
CalChamber argued it would violate the First Amendment rights of its members to force them to place misleading warning labels on their products.
A federal judge granted the injunction last year, only to face a withering attack from the Council for Education and Research on Toxics, a lawyer-run nonprofit that has aggressively pursued lawsuits under California’s Proposition 65 requiring warning labels on any products containing chemicals suspected of causing cancer. CERT pressured U.S. District Judge Kimberly Mueller into recusing herself from the litigation after issuing the injunction halting Prop. 65 lawsuits over acrylamide.
Having succeeded in removing Judge Mueller from the case, CERT pressed to have the injunction reversed so it could continue to sue over acrylamide. The organization, which is based in the offices of toxic-tort attorney Raphael Metzger, has sued over everything from baked potatoes to air fryers and claimed the injunction was an improper prior restraint of its First Amendment right to engage in public advocacy. But a three-judge panel of the Ninth Circuit, in a March 17 decision, rejected the organization’s appeal.
The decision by Judge Mark J. Bennett was joined by judges Ronald M. Gould and Ryan D. Nelson. The panel agreed with Judge Mueller that the science surrounding acrylamide was subject to “robust disagreement by reputable scientific sources” and the companies stood a good chance of winning their First Amendment arguments.
Smaller businesses in particular often can’t afford the cost of proving that acrylamide levels in their products are safe, the appeals court said, and might be forced to issue a warning they believe to be false in order to avoid ruinous litigation.
The appeals court agreed that CERT had standing to challenge the injunction but rejected the group’s argument it violated their First Amendment rights. Courts have ruled that the First Amendment protects the filing of lawsuits, the appeals court said, but in this case those lawsuits would be “illegal” under the judge’s injunction order and therefore not subject to constitutional protection.