A motion recently filed in the Ninth Circuit seeks to dismiss an emergency stay of a preliminary injunction that had temporarily prohibited the filing of Proposition 65 litigation concerning acrylamide in food and beverages.
The July 2 filing, which followed a Ninth Circuit motions panel decision in California Chamber of Commerce v. Rob Bonta, argues that under Article III of the U.S. Constitution, the defendant-intervenor-appellant Council for Education and Research on Toxics (CERT) lacks standing.
“Critically, because the Attorney General has not appealed the preliminary injunction order, CERT must demonstrate that it independently has standing to pursue this appeal,” the motion states.
A motions panel of three Ninth Circuit judges had granted CERT’s stay of the preliminary injunction in May. The 2-1 decision included a dissent from Judge Danielle Forrest, which noted, “[T]he record is devoid of any evidence supporting CERT’s conclusory assertion that the district court’s preliminary injunction order threatened or impaired its First Amendment right to petition for redress.”
But the ruling was a setback that returned California business to a situation resembling what prevailed before Chief Judge Kimberly Mueller of the U.S. District Court for the Eastern District of California granted the preliminary injunction while the case is pending, Trenton Norris, counsel to CalChamber, told the Northern California Record by email.
“Basically, private enforcers can once again sue any business that sells food containing acrylamide without a Prop 65 warning,” Norris said. “The Attorney General remains barred from suing businesses over acrylamide in food, while private bounty hunters can proceed.”
Judge Mueller’s March 29 order denied CERT’s original motion for summary judgment and granted CalChamber's motion for a preliminary injunction. “CERT, for its part, has not shown it is entitled to judgment as a matter of law,” the ruling states.
A nonprofit based in Long Beach, CERT litigation over Prop 65 warnings includes suing McDonald’s and Burger King. In 2010, they filed Council for Education and Research on Toxics v. Starbucks Corp. et al., which was dismissed last year, after the California agency that oversees Prop 65 adopted a new rule, “Exposures to Listed Chemicals in Coffee Posing No Significant Risk.” CERT's appeal of that ruling remains pending.
Norris said a ruling on the July 2 motion is expected later this summer.