Court Overturns Prop 65 Acrylamide Warning
May 5, 2025
Environmental Law
On May 2, a federal district court in Sacramento permanently enjoined the Prop 65 warning for acrylamide in food, finding it to be unconstitutional. At issue in the case, California Chamber of Commerce v. Bonta (E.D. Cal. No. 2:19-cv-02019), was whether the state could compel businesses to provide warnings that acrylamide found in certain foods caused cancer consistent with the First Amendment.
The CalChamber, whose members include businesses that sell foods containing dietary acrylamide, argued that the required Prop 65 warnings conveyed the message that those foods could cause cancer, despite the lack of a scientific consensus supporting that conclusion. The CalChamber further argued that compelling its members to provide the warnings, despite their disagreement with them, constituted prohibited “forced speech” under the First Amendment.
The First Amendment generally prohibits the government from compelling commercial speech (i.e., requiring businesses to provide warnings), with the exception of where the warnings are purely factual, uncontroversial, and not unjustified or unduly burdensome. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). The district court found that the acrylamide Prop 65 warnings were “neither uncontroversial nor purely factual as the warnings espouse a one-sided view that dietary acrylamide poses a human cancer risk despite a lack of scientific consensus on that point.”
The court pointed to reputable agencies and organizations that controverted the state’s viewpoint, including the federal Food and Drug Administration, which said it is “not clear exactly what risk acrylamide poses to humans;” the American Cancer Society, which said dietary acrylamide isn’t likely to be related to risk for most common types of cancer; and the National Cancer Institute, which said additional studies would be needed to determine whether acrylamide is associated with increased cancer risk. The court concluded that however one defines “controversial,” the Prop 65 warning meets the definition because there is no scientific consensus that dietary acrylamide poses a cancer risk.
Having concluded that the purely factual/uncontroversial exception did not apply, the court turned to the core First Amendment issues: whether the acrylamide warning directly advanced a government interest, and whether the warning was more extensive than necessary to achieve that interest. The court found that while the state has an interest in public health, “misleading statements about acrylamide’s carcinogenicity do not directly advance that interest.” The court also found that the state had other ways to convey its message, such as advertising campaigns, but the state cannot “co-opt businesses to deliver its message for it.”
While limited to the Prop 65 warning for dietary acrylamide, the court’s opinion is potentially further reaching. A number of Prop 65 chemicals have been listed despite a lack of scientific consensus on their health effects. Beyond Prop 65, California risk-regulating agencies have often bypassed weighing conflicting evidence and regulated various chemicals well beyond what their risk profiles would reasonably allow. The court’s opinion contains sharp language, expressing clear dissatisfaction with the state’s apparent methodology.