CalChamber Seeks End to Prop.65 Warnings for Acrylamide: Files Lawsuit Against California Attorney General

SACRAMENTO, CA — On behalf of its members, the California Chamber of Commerce today filed a lawsuit to stop the multitude of Proposition 65 warnings for the presence of acrylamide in food and beverages.

The complaint for declaratory and injunctive relief was filed against California Attorney General Xavier Becerra, who is responsible for enforcing Proposition 65, in United States District Court, in the Eastern District of California.

“The effect of too many bogus warnings is no warnings,” said CalChamber President and CEO Allan Zaremberg.  “This case is about clarifying for both businesses and consumers that food does not require Proposition 65 warnings for acrylamide.  This will reduce unnecessary fear for consumers and litigation threats for businesses,” he added.

Currently, Proposition 65 requires any business that produces, distributes or sells food products containing acrylamide to provide a warning unless the business can prove in court, with scientific evidence, that the level poses no significant risk of cancer.  Many businesses have chosen to forgo the expense and uncertainty of litigation and settled with private enforcers while providing warnings for acrylamide.  CalChamber’s complaint argues that these warnings are misleading because “neither OEHHA nor any other governmental entity has determined that acrylamide is a known human carcinogen….”

According to CalChamber’s complaint, the lawsuit is twofold, seeking to ensure that companies’ first amendment rights are protected while also protecting the rights of consumers to receive truthful information.  CalChamber argues that companies should not be forced to provide unsubstantiated and highly controversial acrylamide warnings or face potentially costly enforcement actions initiated by the Attorney General or private enforcers.  CalChamber further argues that by mandating warnings for acrylamide in food, Proposition 65 is forcing individuals and businesses to say something false and misleading.

Acrylamide is not a chemical that is intentionally added to food products; but rather is formed naturally in many types of foods and beverage when cooked at high temperatures, whether at home, in a restaurant or in a factory.  Common sources of acrylamide in the diet (and subjects of Proposition 65 litigation) include baked goods, breakfast cereal, black ripe olives, coffee, grilled asparagus, French fries, peanut butter, potato chips, and roasted nuts.  In June 2019, the California Office of Environmental Health Hazard Assessment (OEHHA) adopted a new regulation declaring that acrylamide in coffee poses no significant risk.

Acrylamide has been present in food as long as humans have cooked food, but it was only discovered to be present in food in 2002.

A copy of CalChamber’s complaint can be found at https://advocacy.calchamber.com/wp-content/uploads/2019/10/CalChamber-v.-Becerra-Complaint.pdf.

 

The California Chamber of Commerce (CalChamber) is the largest broad-based business advocate to government in California. Membership represents one-quarter of the private sector jobs in California and includes firms of all sizes and companies from every industry within the state.  Leveraging our front-line knowledge of laws and regulations, we provide products and services to help businesses comply with both federal and state law. CalChamber, a not-for-profit organization with roots dating to 1890, promotes international trade and investment in order to stimulate California’s economy and create jobs.  Please visit our website at www.calchamber.com.

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