Overview
What the Court Did
On May 2, 2025, a federal district court in California ordered an end to Proposition 65 cancer violation claims for acrylamide in food, finding that the state's "safe harbor" warning was unconstitutional. The court granted the plaintiff's request for declatory relief and a permanent injunction preventing enforcement of the listing. The court had previously entered a temporary injunction in 2021. The case is California Chamber of Commerce v. Bob Bonta and CERT, 2:19-cv-02019 DJC.
If this order withstands appeal, it will represent the end of one of the biggest examples of Prop 65's distorted effect – the ease with which enforcers have been able to cash in by alleging violations based on the state's unrealistic and scientifically dubious chemical listings.
Acrylamide-Containing Foods
Acrylamide is a chemical that is formed when starchy foods are cooked or fried at high temperatures. This includes French fries, potato chips, cookies and bread products. In other words, the main food groups of the typical American teenager’s diet.
The Prop 65 Acrylamide Warning Language
Though the state tried after the suit was filed in this case to save acrylamide violation claims by offering new options of watered-down warning language, the court was not interested. It found all warnings for acrylamide, regardless of how the state phrased them, were unconstitutional because all of them left the same impression: that the state knows acrylamide causes cancer in humans when the facts do not support conclusion. This is the original safe harbor warning that spawned the litigation and which so many are familiar with:
Prop 65 Acrylamide Violation Claims Were Everywhere
Acrylamide was listed as a carcinogen on the Prop 65 list in January, 1990. It was found in industrial materials. In 2002, a Swedish study suggested acrylamide was formed in baked and fried foods. After the study was published, the first acrylamide violation notice involving food – French fries – was filed. Two national chains paid over $1 million to resolve the suit and agreed to place warnings in restaurants. That was just the beginning. There was an explosion of notices for the next twenty years making acrylamide one of the most noticed Prop 65 chemicals. Since 2002, 1,450 violation notices were served. Why? It comes down to measuring micrograms. The state sets "safe harbor" levels for some chemicals. If the exposure for one day, measured in micrograms, is below the state's safe harbor number, no Prop 65 warning is required. What if the safe harbor is unrealistically low? That was one of the main challenges with acrylamide. The state'’s maximum one-day, safe harbor exposure level for acrylamide was 0.2 micrograms. Lead, which is the most noticed Prop 65 chemical year after year, also has a low safe harbor level – of 0.5 micrograms. Acrylamide remains listed as a reproductive toxicant, but that safe harbor level is 140 micrograms.
If the calculated exposure to acrylamide from the food in question exceeded 0.2 micrograms, the company was at risk of a Prop 65 violation notice. Experts will tell you it is difficult, if not impossible, for these types of baked and fried products to contain less than 0.2 micrograms of acrylamide.
So, hundreds of companies each paid tens of thousands of dollars, or more, to settle these claims, paid their own lawyers, and placed these now-unconstitutional warnings. The state Attorney General also used the low safe harbor level to base lawsuits against several large snack food companies and restaurant chains, resulting in combined settlements in the millions.
Acrylamide Warnings Violate A Company's Free Speech
Companies have First Amendment rights. In finding the acrylamide listing unconstitutional, the court relied on a pair of Supreme Court cases finding that the government can compel a company's speech only if the language is not controversial or misleading. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985) and Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). Here, the court found the Prop 65 acrylamide listing failed this test because the warning language stated that acrylamide is known to cause cancer in humans "despite lack of scientific consensus supporting the conclusion." The court found that the mere presence of the Prop 65 warning language communicates that dietary acrylamide poses a risk of cancer. Contrary to the Swedish study’s findings that ignited the acrylamide firestorm, there is published data concluding no reliable epidemiological evidence exists that dietary acrylamide increases the risk of cancer in humans. In other words, because there exists scientific debate, the state does not actually "know" that acrylamide can cause cancer in humans. To force a company to give such a warning saying the state knows it does when it does not would indeed be controversial and misleading.
This court's order is part of a larger push back by the federal courts in the last few years against Prop 65's overreach. Acrylamide is not the only Prop 65 listing a court has found unconstitutional. There are two others (so far) – one involves the chemical glyphosate used as a weed killer, Nat'l Association of Wheat Growers v. Bonta, 85 F.4th1263 (9thCir. 2023), and the other for Titanium Dioxide found in makeup, Care Council v. Bonta, Case 2:23-cv-01006 (preliminary injunction issued on further violation Prop 65 violation notices, June 12, 2024). These three decisions – acrylamide, glyphosate and Titanium Dioxide – in the span of three years represent some of the most significant reform of Prop 65 in its 40-plus years. I will devote a separate post delving into the details and why they are so important to the defense of Prop 65 claims – and are likely just the beginning of a broader attack involving numerous listed chemicals.
Too Little, Too Late for Many Companies
If the order withstands appeal, it will of course be a really big deal. This order is welcome news for those restaurants and companies who make and sell things that contain acrylamide – they do not have to worry about costly violation claims. Unfortunately, this victory comes too late for the hundreds of companies and restaurants who were hit with acrylamide violation notices over the last 20-plus years, and who have already paid significant settlements. Nor does it take back any negative impact on customer perceptions or the bottom line over the years caused by the companies having to carry these unconstitutional and false warnings on products or in restaurants as part of settlements.
The Order is Not the Final Word – Yet
Though it has until June 2 to file an appeal, it is unclear whether the state (or the private enforcer that joined as a plaintiff) will do so. That is because the appeal would be heard by the same panel of judges at the Ninth Circuit Court of Appeals who ruled against them on their appeal of the court's preliminary injunction. Until there is a final determination, companies who previously entered settlements and agreed to testing and/or warnings for acrylamide should continue to comply with these agreements. Hopefully, it will not be for much longer.
