Court Determines Breakfast Cereal Currently Does Not Require Prop 65 Warnings

July 19, 2018

California Grocers Association, Government Relations Bulletin

A recent appellate decision from the Second District Court of Appeal in Los Angeles has determined that breakfast cereals do not require a Prop 65 warning for acrylamide.  The decision was based on the fact that in 2003 and 2006 USDA issued letters to California officials advising them that breakfast cereals contain whole grains, which USDA wants Americans to consume.

The Court found that the letters, which have not been detracted, “contained persuasive reasoning why (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.  The plaintiff in the case intends to ask for a rehearing, and will likely appeal the case to the California Supreme Court.

CGA members should know that their privately labeled whole grain breakfast cereals do not need a Prop 65 cancer warning for acrylamide, though this could change in the future if the California Supreme Court holds otherwise.

Contact CGA Government Relations Department for additional information or with questions at (916) 448-3545 or email Aaron Moreno, Sr. Director, Government Relations.

Leila Bruderer is a Counsel in the Sacramento offices of Downey Brand LLP. She practices in the areas of environmental litigation, environmental compliance, hazardous waste compliance and Proposition 65.

This article appeared in California Grocers Association’s Government Relations Bulletin on July 19, 2018, and is republished with permission. © California Grocers Association.