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Bakery fights to take cancer warning label off its cookies

The maker of a devil's food cookie cake claims its products do not cause cancer and the outfit responsible for tests that say they do has destroyed the evidence.

SACRAMENTO, Calif. (CN) — California residents can’t make it through a day without viewing at least one Proposition 65 cancer warning. Now, the warning plastered across amusement parks, food packaging and even dental offices has reached a federal courtroom — and the dispute is over baked goods.

On Friday morning, Chief U.S District Judge Kimberly Mueller, a Barack Obama appointee in the Eastern District of California, heard arguments on a bid to dismiss a lawsuit brought by B & G Foods North America, which claims the Golden State has mislabeled its cookies with the Proposition 65 cancer warning.

California voters passed Proposition 65 in 1986, requiring products and places with chemicals known to cause cancer or reproductive harm to be clearly labeled with a warning. The list of chemicals is extensive, with over 1,000 recognized as of January 2023. A crucial part of Proposition 65 is that it empowers private citizens to take legal action for noncompliance even without being harmed by a product — such as a mass-produced cookie.

B & G Foods Inc., represented by Matthew Borden of Braunhagey and Borden, claims a naturally occurring substance, acrylamide, is not a cancer-causing chemical and that the Proposition 65 warnings don't belong on the company’s devils food cookie cakes. In its first complaint filed in 2020, the company said the chemical arises in most situations where food is cooked. Judge Mueller has since dismissed the original and an amended complaint.

The second amended complaint accuses the state of knowing that acrylamide does not cause cancer in certain foods, such as coffee. The defendants — Kim Embry and Environmental Health Advocates, as representatives for the state — are also accused of destroying evidence by tossing out the cookies that were lab-tested for chemicals in 2019.

The defendants moved to dismiss the second amended complaint. The motion came along with a request for sanctions on the company, which Borden called an “outrageous, kind of sham litigation” that has “bogged down the court system.”

Borden argued the defendants' test results were false and that the tested cookies were intentionally destroyed to fabricate evidence.

“I know it has a lot of preservatives in it, but I can’t imagine what a four-year-old cookie would look like now,” shot back defense attorney and onetime defendant Noam Glick.

Sentiments in all three complaints and Borden’s remarks in court reflect an attitude against Proposition 65 from the start — beyond enforcement of the warning labels. For example, the company claims in its 42-page second amended complaint that the enforcement and fines of Proposition 65 only benefit lawyers who profit from the citizen action cases and that California allows the representatives to “threaten” food companies.

“What you heard Mr. Borden say, in a nutshell, is they don’t like Prop 65 the statute and that the statute needs to be rewritten or taken off the books,” Glick said. “Lobbyists can certainly go ahead and make those arguments.”

Neither Glick nor Borden responded to requests for comment.

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