A recent appellate decision from the Second District Court of Appeal in Los Angeles has determined that breakfast cereals do not require a Proposition 65 warning for acrylamide. Post Foods, LLC v. Superior Court of Los Angeles County, Case No. B284057 (Cal. Ct. App. July 16, 2018). The decision is based on the fact that in 2003 and 2006 the United States Food and Drug Administration (FDA) issued letters to California officials advising them that breakfast cereals contain whole grains, which FDA wants Americans to consume.
California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986—or “Prop 65”—prohibits businesses from releasing chemicals “known to the state to cause cancer or reproductive toxicity,” and from exposing people to chemicals on the Prop 65 List without providing “clear and reasonable” warnings. The plaintiff in the underlying action contended that breakfast cereals are required to display Prop 65 cancer and reproductive warnings because breakfast cereals contain acrylamide.
The Office of Environmental Health Hazard Assessment (OEHHA) originally added acrylamide to the Prop 65 List in 1990 as carcinogenic. Later, in 2011, OEHHA identified developmental toxicity and male reproductive toxicity as endpoints for acrylamide. Acrylamide forms in certain plant-based foods when they are cooked or roasted under high temperatures. Apart from breakfast cereals that contain whole grains, acrylamide is also commonly found in roasted coffee beans and starchy foods such as French fries, breads and some potato chips.
The Court found that FDA’s letters, which have not been detracted, “contained persuasive reasoning why Proposition 65 acrylamide warnings on whole grain cereals would mislead consumers and lead to health detriments.” Essentially, the Court found that the federal interest in Californians consuming whole grains preempted California’s interest in warning consumers that cereals contain acrylamide under Prop 65.
The plaintiff in the case intends to ask for a rehearing, and will likely appeal the case to the California Supreme Court. For now, however, businesses that manufacture or sell breakfast cereals in California that contain whole grains do not need to provide a Prop 65 cancer warning for acrylamide.
This decision, like the preliminary injunction issued in the glyphosate action in federal District Court on the First Amendment grounds, assuming it withstands appeal, has important implications. It is one of the few decisions where federal preemption has been successfully used to overcome Prop 65’s warning requirement and opens the door for similar arguments for other whole grain foods.
For assistance in complying with Prop 65 enforcement matters, please contact us.