Do You Want Fries With That?

By Daniel J. Herling

The old joke of “what do Philosophy majors ask at their first job?” takes on a new meaning in the world of Prop 65.

On October 7, 2019, the California Chamber of Commerce filed a lawsuit in  Federal court for the Eastern District of California (Complaint) challenging Proposition 65 warnings for food that contain the chemical Acrylamide.  The Complaint seeks declaratory relief in asking the court to rule that the Proposition 65 warnings required for cancer applicable to Acrylamide in food products violate the First Amendment and the complaint is asking the court to issue an injunctive relief order prohibiting the State of California and private citizen enforcers (aka “bounty hunters”) from enforcing Proposition 65 warning requirements with respect to any food products.

The Complaint recites a litany of issues with Acrylamide being a Proposition listed chemical, many of these issues were addressed in the Acrylamide coffee cases that we have previously addressed (see here and here).  The issue of Proposition 65 warnings regarding acrylamide is a real one for food producers.  The number of Notices of Violations (NOVs) being filed are ever increasing: in 2016, 32 (NOVs), in 2017, 144 (NOVs), in 2018, 147 (NOVs) and in 2019 (to date) 174 NOVs). 

The Chamber lawsuit is another chapter in the Proposition 65 saga.  Earlier this year, OEHHA (the CA state agency tasked with listing Proposition 65 chemicals), issued a regulation clarifying that exposure to Acrylamide, along with some other chemicals in “ready-to-brew” coffee did not pose a cancer risk (27 CCR 25704).

In February 2018 a EDCA court issued a preliminary injunction prohibiting California from requiring “false and misleading Proposition 65 labeling for the herbicide glyphosate (see 309 F. Supp. 3d 842 (2018) and our prior posts on this issues, here, here and here).

One doesn’t need to be a philosophy major to understand that acrylamide in food will impact the fundamental nature of the knowledge, reality and existence of Proposition 65.

We will continue to follow and report on these issues.

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    Daniel J. Herling

    Member / Co-chair, Product Liability Practice

    Daniel J. Herling is a highly regarded product liability defense attorney at Mintz. He handles litigation and class actions involving consumer products, leveraging his deep knowledge of California's consumer protection regulations and laws.