California recently amended its Proposition 65 regulations[1] to add several additional alternative “safe harbor” warning labels for foods containing acrylamide, a naturally-occurring byproduct that can result during high-heat cooking. By adding insights from a recent Ninth Circuit opinion into the legislative mix, California hopes it has crafted the recipe for success in its ongoing First Amendment battle over compulsory Prop 65 warning labels for foods containing disputed carcinogens like acrylamide.
What is Proposition 65?
Prop 65 prohibits businesses from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer without first giving clear and reasonable warnings. There is a standard Prop 65 warning label for food, which many businesses have adopted to shield themselves from the risk of litigation or regulatory action.
What is Acrylamide?
Acrylamide is a substance that forms through a natural chemical reaction in certain plant-based foods during high-temperature cooking and can be found in foods like potato chips, bread, grilled vegetables, nuts, crackers, and olives. Although studies exposing laboratory rats and mice to high levels of acrylamide have been shown to produce cancer, other studies have found no consistent evidence that dietary acrylamide increases the risk of cancer in humans.[2]
CalChamber v. Becerra: US District Court Issues Preliminary Injunction Against Mandatory Warnings For Foods Containing Acrylamide
California’s Office of Environmental Health Hazard Assessment (“OEHHA”) drafted the first alternative safe harbor warning for acrylamide in response to a preliminary injunction issued by the US District Court for the Eastern District of California in California Chamber of Commerce v. Becerra (2021) 529 F.Supp.3d 1099, where the Court held that the state had not shown that acrylamide in food poses a “purely factual and uncontroversial” cancer risk.
The Office of Administrative Law swiftly approved the first alternative “safe harbor” warning label for foods containing acrylamide. The current alternative warning for acrylamide provides:
CALIFORNIA WARNING: Consuming this product can expose you to acrylamide, a probable human carcinogen formed in some foods during cooking or processing at high temperatures. Many factors affect your cancer risk, including the frequency and amount of the chemical consumed. For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide
The Ninth Circuit upheld the injunction on appeal, and the Eastern District case is continuing. Thus, the constitutionality of the current acrylamide warning content has not yet been resolved.
National Association of Wheat Growers v. Bonta: Ninth Circuit Holds that Prop 65 Warning Labels for Disputed Carcinogens Violate the First Amendment
Only a few weeks after the district court’s decision in CalChamber v. Becerra, businesses seeking to challenge Prop 65 warnings for disputed carcinogens gained another major win in National Association of Wheat Growers v. Bonta (2023) 85 F.4th 1263.That case centered around the OEHHA’s decision to add glyphosate—a widely-used herbicide—to the Prop 65 list.
The Ninth Circuit held that because “the overall message that glyphosate is unsafe . . . is, at best disputed”, Prop 65 labels would require “plaintiffs to convey a controversial, fiercely contested message that they fundamentally disagree with.” Accordingly, because California had less burdensome ways to convey its message than to compel plaintiffs to convey it for them, the Prop 65 warning requirement as applied to glyphosate was unconstitutional.
OEHHA’s New Regulation Language
On April 5, 2024—five months after the Ninth Circuit’s decision striking down warning labels for glyphosate—OEHHA proposed additional safe harbor warnings for acrylamide. The final text of the amended regulation permits businesses to substitute the following optional language following WARNING, CA WARNING, or CALIFORNIA WARNING:
- The words, “Consuming this product can expose you to acrylamide,” or the words “Consuming this product can expose you to acrylamide, a chemical formed in some foods during cooking or processing at high temperatures.”
- At least one of the following sentences:
- “The International Agency for Research on Cancer has found that acrylamide is probably carcinogenic to humans.”
- “The United States Environmental Protection Agency has found that acrylamide is likely to be carcinogenic to humans.”
- “The United States National Toxicology Program has found that acrylamide is reasonably anticipated to cause cancer in humans.”
- The content in (A) and (B) may be followed by one or more of the following sentences:
- “Acrylamide has been found to cause cancer in laboratory animals.”
- “Many factors affect your cancer risk, including the frequency and amount of the chemical consumed.”
- “For more information including ways to reduce your exposure, see www.P65Warnings.ca.gov/acrylamide.”
Although this new language tracks the Ninth Circuit’s findings regarding glyphosate’s potentially carcinogenic properties almost to the letter, it remains to be seen whether such a literal interpretation of the Court’s opinion is sufficient to overcome the spirit of the Court’s reasoning with respect to the constitutionality of compelled Prop 65 warnings for acrylamide or other disputed carcinogens generally.
FOOTNOTES
[1] Title 27, California Code of Regulations 25607.2(b)
[2] https://www.cancer.gov/about-cancer/causes-prevention/risk/diet/acrylamide-fact-sheet; https://www.fda.gov/food/chemical-contaminants-food/acrylamide