Federal Court Declares Proposition 65 Warning Requirement for Dietary Acrylamide Unconstitutional: What’s Next?

The U.S. District Court for the Eastern District of California recently held that California’s addition of dietary acrylamide to the Proposition 65 warning list was unconstitutional. The decision came in the case of California Chamber of Commerce v. Bonta, which the Chamber of Commerce initially filed in 2019.

While the decision is specific to dietary acrylamide, the court’s analysis provides some valuable insights for evaluating future challenges to listings under Proposition 65. Keep reading to learn more from our California environmental litigation attorneys.

Compelled Speech: Challenging Proposition 65 Warning Requirements on Constitutional Grounds

In California Chamber of Commerce v. Bonta, the Chamber of Commerce argued that the Proposition 65 warning requirement for dietary acrylamide amounted to “compelled speech,” in violation of businesses’ constitutional rights. Under the First Amendment (as applied to the states under the Fourteenth Amendment), government entities cannot compel individuals or organizations to support government-approved messages.

At issue in this case was the accuracy of the Proposition 65 warning for dietary acrylamide. While government entities in California can generally require companies to provide safety warnings, such requirements must satisfy a two-part test:

• The required safety warning must be factual and uncontroversial; and,
• The required safety warning must serve a substantial government interest without being unduly burdensome on the businesses that need to comply.

The court held that California’s Proposition 65 warning requirement for dietary acrylamide did not satisfy either part of the test for enforceability.

Regarding the first part of the test, the court found that the required dietary acrylamide warning was neither factual nor uncontroversial. In doing so, it cited research from the U.S. Food and Drug Administration (FDA) and the National Cancer Institute (NCI), among other health authorities, finding the data insufficient to conclude that dietary acrylamide is a human carcinogen. Based on this inconclusiveness, the court found it “controversial” to represent that dietary acrylamide can cause cancer.

Regarding the second part of the test, the court found that the required dietary acrylamide warning did not serve a substantial government interest due to being “misleading,” and that the government could not “co-opt businesses to deliver its message for it.”

Businesses Should Not Be Forced to Choose Between Compliance and Facing Litigation

Notably, in its decision, the U.S. District Court for the Eastern District of California also recognized that even if businesses incur the substantial costs involved in proving that their products do not contain levels of dietary acrylamide above the “no significant risk” level, “there is no guarantee they will then be free from litigation challenging their compliance with Prop 65’s warning requirements.” As a result, the court concluded, if the warning requirement for dietary acrylamide were allowed to stand, businesses would be forced to either “utilize a Prop 65 warning on their products or run the risk of incurring substantial costs in defending against enforcement actions.”

In addition to the two-part analysis discussed above, this also has potential implications for future challenges to Proposition 65 warning requirements. Going forward, businesses that are considering challenges to new or existing Proposition 65 listings will want to keep the court’s decision in California Chamber of Commerce v. Bonta in mind.

Schedule a Call with a California Environmental Litigation Attorney at Bick Law LLP

If you have questions about Proposition 65 compliance or challenging a Proposition 65 listing in court, we invite you to contact us. To schedule a call with a California environmental litigation attorney at Bick Law LLP, give us a call at 949-432-3500 today.