The Ninth Circuit Court of Appeals has found that the district court did not abuse its discretion in granting a preliminary injunction blocking a requirement to warn California consumers about the presence of acrylamide in food and beverage products. Cal. Chamber of Com. v. Council for Education and Research on Toxics, No. 19-2019 (9th Cir., entered March 17, 2022). Filed by the California Chamber of Commerce, the suit alleges that requiring the warning for products containing chemicals listed under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) on products with acrylamide would violate the organization’s members’ “First Amendment rights to not be compelled to place false and misleading acrylamide warnings on their food products.”

The district court held that the state did not show the Prop. 65 acrylamide warning was “purely factual and uncontroversial.” “[D]ozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide,” the district court found. “[T]he safe harbor warning is controversial because it elevates one side of a legitimately unresolved scientific debate about whether eating foods and drinks containing acrylamide increases the risk of cancer.”

The appeals court agreed, finding support for the district court’s holdings in the record. “In 2019, the American Cancer Society stated that ‘dietary acrylamide isn’t likely to be related to risk for most common types of cancer,'” the court noted, then went on to list similar statements from the National Cancer Institute and additional studies before noting three organizations on the opposite side of the argument. “Given this robust disagreement by reputable scientific sources, the court did not abuse its discretion in concluding that the warning is controversial.”

The district court was also justified in finding that “the warning is misleading,” the appeals court held, because the safe-harbor Prop. 65 warning, which states that a substance is “known to the State of California to cause cancer,” does not convey the meaning of the word “known.” “Under Prop. 65, a ‘known’ carcinogen carries a complex legal meaning that consumers would not glean from the warning without context,” the appeals court held. “Thus, use of the word ‘known’ is misleading—as the [Food and Drug Administration] acknowledged the warning might be. Even the State of California has stipulated that it ‘does not know that acrylamide causes cancer in humans, and is not required to make any finding to that effect in order to list the chemical under Proposition 65.'”

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