April 2, 2021
Authored by: Merrit Jones and Tom Lee
A California district court has granted the California Chamber of Commerce’s preliminary injunction motion and prohibited the filing of new Proposition 65 lawsuits alleging exposure to acrylamide in food, pending the outcome of the case filed by the Chamber against the Attorney General’s office challenging enforcement of the cancer warning for acrylamide.
The order by Judge Kimberly J. Mueller states that “[w]hile this action is pending and until a further order of this court, no person may file or prosecute a new lawsuit to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products.” The injunction applies to the Attorney General as well as private enforcers.
Although not a final prohibition on such enforcement actions, the ruling is expected to bring welcome relief to food manufacturers and retailers who have been hit hard by a wave of lawsuits. There have been more than 1,000 60-day notices alleging exposure to acrylamide in food, and more than one-third of those were served in the past year.
The issue before Judge Mueller was whether the safe harbor warning language set out in the Proposition 65 regulations, which includes the use of the statement that the product is “known” to cause cancer, constitutes compelled speech which is not “purely factual and uncontroversial.” After weighing competing factors of prior restraint, free speech, and conflicting scientific evidence, Judge Mueller concluded that the Chamber had demonstrated a likelihood of success in its argument that the warning is not “purely factual