California fails to convince judge on cancer warning for acrylamide

SACRAMENTO, Calif. (CN) — A permanent injunction issued Friday by a federal judge will prohibit California from requiring Proposition 65 warnings for dietary acrylamide, finding that the debate continues on whether it’s carcinogenic to people.

U.S. District Judge Daniel Calabretta ruled in favor of the California Chamber of Commerce, granting its motion for summary judgment. Forcing the chamber and its members to display the warning would be unconstitutional, he wrote.

“The court finds that the Prop 65 warnings for dietary acrylamide are misleading and controversial as they state that dietary acrylamide is carcinogenic to humans despite vigorous scientific debate concerning that conclusion and compel CalChamber’s members to espouse that view despite their disagreement,” the Joe Biden appointee wrote.

Acrylamide is produced to treat drinking water and for making plastics. Researchers in 2002 discovered that it can occur naturally in food, like potato and grain products, when cooked at high temperatures.

Some studies have shown rats that consumed food and water with acrylamide were more likely to develop cancerous tumors. While epidemiologists have no consensus about its effects on humans, acrylamide has been classified as likely to be carcinogenic to humans by the International Agency for Research on Cancer, U.S. National Toxicology Program and U.S. Environmental Protection Agency.

Prop 65, called the Safe Drinking Water and Toxic Enforcement Act, passed in 1986. It requires the governor to issue an annual list of chemicals known to cause cancer or reproductive toxicity. Barring an exemption, businesses generally must provide a clear and reasonable warning before people are exposed to chemicals on the list. Those that don’t could face a $2,500 civil penalty per day.

Acrylamide is on the list of chemicals, leading the state chamber to file suit in 2019. It argued that a Prop 65 warning for acrylamide violated its and its members’ First Amendment rights.

A judge in early 2021 issued a preliminary injunction against the acrylamide warning. The state has tweaked the wording of that warning since, with the state chamber ultimately asking the judge to grant a permanent injunction, arguing none of the warnings were constitutional.

California argued that the chamber had no standing to bring the case, as a warning is only required if acrylamide levels exceed a significant risk level. Calabretta brushed aside that argument.

“Even if a business attempts to exempt their product by proving it contains acrylamide levels below the no significant risk level, incurring attendant costs to do so, there is no guarantee they will then be free from litigation challenging their compliance with Prop 65’s warning requirements,” the judge wrote.

“Businesses must either utilize a Prop 65 warning on their products or run the risk of incurring substantial costs in defending against enforcement actions,” he added, ruling the chamber had standing to file suit.

Turning to the constitutionality of the acrylamide warning, Calabretta wrote that commercial speech has fewer protections than private speech. However, it does have First Amendment protections.

Applying two legal tests, Calabretta wrote that he would first ascertain if the warnings were factual and contained uncontroversial information. He would then consider if they had a substantial government interest and weren’t unduly burdensome.

First, the judge ruled that the warnings are controversial and not factual, stating that dietary acrylamide contains a risk of cancer to people, though there’s no scientific consensus.

The warnings also failed the second legal test, Calabretta wrote. He found that misleading statements about acrylamide’s cancer risk don’t help California protect people’s health. The state has other, less burdensome methods to achieve those goals.

Having determined a required warning would violate the First Amendment, Calabretta then pivoted to if a permanent injunction was warranted.

“Providing misleading or false labels to consumers also undermines California’s interest in accurately informing its citizens of health risks at the expense of CalChamber’s First Amendment rights,” the judge wrote. “Accordingly, the balance of equities and public interest weigh in favor of permanently enjoining Prop 65’s warning requirement for dietary acrylamide.”

Jennifer Barrera, president and CEO of the state chamber, praised the ruling in a statement.

“Now, after more than five years, businesses will have the longstanding issue of unnecessary Prop 65 warnings decided,” Barrera said. “Compelling businesses to provide burdensome warnings that lack scientific backing is simply unconstitutional.”

The state Department of Justice couldn’t be reached for comment as of publication time.