On behalf of its members, the California Chamber of Commerce yesterday filed a lawsuit to stop the multitude of Proposition 65 warnings for the presence of acrylamide in food.
The lawsuit filed against California Attorney General Xavier Becerra, who is responsible for enforcing Proposition 65, asks the U.S. District Court, Eastern District of California to stop the Attorney General and private enforcers from proceeding with Proposition 65 litigation over acrylamide in food.
“The effect of too many bogus warnings is no warnings,” said CalChamber President and CEO Allan Zaremberg in a statement. “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.”
Misleading Warnings
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.
The CalChamber’s complaint argues that these warnings are misleading because “neither OEHHA [California Office of Environmental Health Hazard Assessment] nor any other governmental entity has determined that acrylamide is a known human carcinogen….”
The lawsuit has two goals: to protect companies’ First Amendment rights while also protecting the rights of consumers to receive truthful information.
The 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. Moreover, the CalChamber argues, by mandating warnings for acrylamide in food, Proposition 65 is forcing individuals and businesses to say something false and misleading.
Acrylamide
Acrylamide is not a chemical that is added intentionally to food products. Rather, it forms naturally in many types of foods when they are 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.
Acrylamide has been present in food as long as humans have cooked food, but was discovered to be present in food only in 2002.
A copy of the CalChamber’s complaint can be found at https://advocacy.calchamber.com/wp-content/uploads/2019/10/CalChamber-v.-Becerra-Complaint.pdf.
