On May 2, 2025, the Eastern District of California permanently enjoined California’s requirement to provide Proposition 65 (“Prop. 65”) warnings for dietary exposure to acrylamide, finding such a requirement to be unconstitutional. The court determined that dietary warnings for acrylamide would be misleading and controversial because there is widespread scientific debate about acrylamide’s carcinogenicity, and the warnings compel industry members to adopt that view despite their disagreement. This landmark victory permanently enjoins California from enforcing Prop. 65 for dietary acrylamide, halts private enforcement, and may pave the way for future challenges due to a lack of scientific consensus about a chemical’s carcinogenicity or reproductive toxicity.
This case began in 2019 when California Chamber of Commerce (“CalChamber”) sued the state of California, claiming Prop. 65’s acrylamide warning requirement violated its members’ First Amendment right not to be compelled to place “false and misleading” acrylamide warnings on their food products. In 2021, the district court granted CalChamber’s motion for preliminary injunction and barred further suits attempting to enforce the warning requirements as applied to acrylamide in food. That preliminary injunction was affirmed by the Ninth Circuit in 2022. Since the preliminary injunction was issued, the California Office of Environmental Health Hazard Assessment (“OEHHA”) has promulgated two regulations creating safe harbor warnings specific to acrylamide in food with more qualified language about acrylamide’s cancer risk, sparking CalChamber’s request for a permanent injunction in this case.
The First Amendment generally prohibits the government from compelling commercial speech, except where such warnings are uncontroversial and purely factual. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). The district court found that the acrylamide Prop. 65 warnings, including the more qualified, acrylamide-specific warnings, were “neither uncontroversial nor purely factual as the warnings espouse a one-sided view that dietary acrylamide poses a human cancer risk despite a lack of scientific consensus on that point.” The court supported its decision by citing statements from reputable agencies and organizations, including the U.S. Food and Drug Administration, National Cancer Institute, and American Cancer Society, that call into question dietary acrylamide’s carcinogenicity.
The court found the State’s First Amendment arguments unconvincing, reasoning that while the State undoubtedly has an interest in public health, requiring misleading statements does not directly advance the interest. In addition, the court pointed to alternative ways the State could convey its message, such as advertising or educational campaigns.
This case affirms that food manufacturers are not required to provide Prop. 65 warnings for dietary exposures to acrylamide, marking another major victory for industry following the Ninth Circuit enjoining Prop. 65 warning requirements for glyphosate. This decision may pave the way for future challenges, even when safe harbor language is heavily qualified, as it was for acrylamide. California has until June 2, 2025, to appeal the decision.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Food, Beverage, and Dietary Supplements practice.
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