A precedent-setting decision in California Chamber of Commerce v. CERT, issued by the Ninth Circuit earlier this month, clarifies how the First Amendment applies to Proposition 65 warnings.
The unanimous panel decision affirmed a preliminary injunction in Cal. Chamber of Com. v. Becerra that prevents the filing of Proposition 65 litigation concerning acrylamide in food and beverages.
It's the first Ninth Circuit decision, and the first federal appellate decision ever that concerns Proposition 65 and the First Amendment, Trenton Norris, counsel to CalChamber, told the Northern California Record.
“And it rules in favor of businesses on our challenge to the use of Prop 65 with respect to acrylamide in food,” Norris said. “So it sets a precedent that will be useful for other chemicals and clarifies the case law with respect to the First Amendment application to Prop 65.”
Norris noted the case makes clear that Prop 65 warning is unconstitutional unless it's purely factual and uncontroversial.
“There may be chemicals in foods and types of exposures, for instance, for which the state could meet that standard, and there may be some for which the state cannot meet that standard,” Norris said. “So, for instance, acrylamide is one where the district court has held at least preliminarily that the state cannot meet that standard.”
Although acrylamide is known to cause cancer in laboratory animals, there's no evidence that it causes cancer in humans despite acrylamide being consumed regularly by humans for centuries, Norris said.
‘So each chemical would have to be considered on its own merits, each exposure scenario would have to be considered on its own merits, but the courts made clear that there's nothing about Prop 65 that makes it exempt from the Constitution’s restrictions on the government's ability to restrict the speech of businesses.”
The Ninth Circuit’s unanimous decision, authored by Justice Mark J. Bennett, was issued March 17.
“The record supports the district court’s findings. First, the district court found that the safe harbor warning is controversial because of the scientific debate over whether acrylamide in food causes cancer in humans,” the appellate decision states. “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 decision includes numerous examples that represent the ongoing debate over Prop 65.
“Given this robust disagreement by reputable scientific sources, the court did not abuse its discretion in concluding that the warning is controversial,” the appellate decision states.
Norris noted that a factual and non-controversial label would be caloric content on food items.
“That's purely factual, it's non-controversial, and the government has a good reason for wanting that label on the exterior of the package,” Norris said. “But to say this product contains acrylamide, a chemical known to the state to cause cancer, when the state admits it doesn't know that it causes cancer in humans, and when there's no evidence that it causes cancer in humans, that crosses a line.”