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Ninth Circuit upholds block on acrylamide warning for food products sold in California

The Ninth Circuit sided with a federal judge in finding that a cancer warning label on products containing the chemical acrylamide would mislead consumers, since the question of whether it causes cancer in humans is unsettled.

SAN FRANCISCO (CN) — Finding “a serious constitutional issue” raised by a California law requiring cancer warning labels on products containing the chemical acrylamide, the Ninth Circuit Court of Appeals upheld an injunction temporarily barring its enforcement on Thursday.

Last year, U.S. District Judge Kimberly Mueller issued an order preventing the state or private parties from suing companies for not putting Proposition 65 warning labels solely on food and beverages containing the toxic chemical pending the outcome of legal challenge brought by the California Chamber of Commerce.

She said the science is still unsettled on the risk of eating foods containing acrylamide, a toxic chemical produced to treat drinking water and for making plastic and cosmetic products that sometimes occurs naturally in food.

The California Chamber of Commerce is currently fighting the warning requirement in federal court, arguing that its members have a First Amendment right not to be compelled to put a “false and misleading” warning on their products. The Council for Education and Research on Toxics, a non-profit that sues businesses for not displaying the warning on products, intervened in place of the state of California to appeal Mueller’s ruling.

While not common in meat, fish and dairy products, acrylamide is often found in baked or fried foods like french fries, potato chips and donuts. It has also been identified in healthier products like coffee, almonds and black olives.

Studies have shown rats fed water and food containing acrylamide were more likely to develop cancerous tumors all over their bodies, but so far epidemiologists have not reached a consensus when it comes to humans. Meanwhile, the National Toxicology Program’s Report on Carcinogens lists acrylamide as “reasonably anticipated to be a human carcinogen.”

California’s Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65, prohibits businesses from knowingly and intentionally exposing people to chemicals “known to the state to cause cancer or reproductive toxicity” without a “prior clear and reasonable warning.”

Mueller found the acrylamide warning language to be misleading.

“The state has not shown that the cancer warnings it requires are purely factual and uncontroversial,” she wrote. “Nor has it shown that Proposition 65 imposes no undue burden on those who would provide a more carefully worded warning.”

Three Ninth Circuit Judges agreed with Mueller and CalChamber that the warning fails to pass constitutional muster under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, which mandates that required disclosures be purely factual and noncontroversial.

"We agree with CalChamber and the district court. The serious constitutional issue raised by CalChamber gave the district court sufficient reason to enjoin Prop. 65 acrylamide litigation until the case was finally decided on the merits,” wrote Circuit Judge Mark Bennett. He was joined by Circuit Judge Ryan Nelson, a fellow Trump appointee, and Circuit Judge Ronald Gould, a Bill Clinton appointee.

"The court similarly did not abuse its discretion in finding the warning is misleading,” Bennett wrote. "Under Prop. 65, a ‘known’ carcinogen carries a complex legal meaning that consumers would not glean from the warning without context. Thus, use of the word ‘known’ is misleading—as the FDA acknowledged the warning might be.”

CalChamber Senior Policy Advocate Adam Regele praised the panel’s affirmation of the injunction in a statement.

"We are pleased that the Ninth Circuit upheld the district court’s analysis in every respect,” he said. “We anticipate this will protect California businesses from new acrylamide litigation and look forward to the district court’s ultimate ruling on the merits of our lawsuit.”

CERT's attorney Raphael Metzger did not immediately respond to a request for comment Thursday.

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