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Federal court suspends Prop 65 lawsuits, more litigation and activism to follow

A federal court in California recently granted a motion for a preliminary injunction suspending lawsuits against companies allegedly violating the state’s Proposition 65 warning requirement for acrylamide. The court is in the midst of deciding if the requirement is constitutional based on existing evidence.

Officially known as The California Safe Drinking Water and Toxic Enforcement Act of 1986, Prop 65 requires companies to provide a clear warning label on a product that exposes individuals to any chemical listed on the California Office of Environmental Health Hazard Assessment (OEHHA). One of those chemicals, known as acrylamide, has come into question after the California Chamber of Commerce (CalChamber) filed a lawsuit challenging the requirement.

Acrylamide, a chemical formed under high heat in the cooking or baking process, has been considered a possible carcinogen in humans since the late 1990s. The biggest sources in packaged foods include potato chips, crackers, bread, cookies, breakfast cereals and coffee.

Under the Prop 65 law, food manufacturers whose products contain trace amounts of the chemical are required to post the warning, “Consuming this product can expose you to acrylamide, which is known to the State of California to cause cancer,” on their packaging. But CalChamber argues there is inadequate scientific research to prove acrylamide causes cancer in humans. Therefore, requiring companies to post the warning, “unconstitutionally requires them to make a statement that is not factually true and is controversial.”

As the case unravels and eventually comes to a close, there’s no doubt it will impact companies up and down the supply chain, and it’s crucial to understand the related implications.

What this means for food manufacturers

The CalChamber lawsuit, filed in U.S. District Court for the Eastern District of California, may open the door to more lawsuits challenging the validity of regulating other chemicals under OEHHA.

If the lawsuit succeeds and a warning label for acrylamide is no longer required, then violation of Prop 65 won’t be grounds for lawsuits against food companies. But before you get too excited, this does not mean you’re safe from other litigation risks. This lawsuit is solely about the label, not the chemical itself. While there may not be scientific proof keeping it on the Prop 65 list yet, there will still be activists, regulators and researchers working harder to link acrylamide and other food ingredients to cancer. You will certainly remain vulnerable to lawsuits beyond Prop 65.

Now is the time to be proactive and prepare your recall and crisis plans related to Prop 65. Evaluate and document your company’s Prop 65 risk and thoroughly research this new round of litigation so that you understand the full scope of the law and its possible impact on your products.

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