A federal judge has placed the onus on the state of California to prove that acrylamide causes cancer as asserted by Proposition 65 before any further lawsuits requiring cancer warning labels may be filed.
“While this action is pending and until further order of this court, no person may file or prosecute a new lawsuit to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products,” wrote California Eastern District Chief Judge Kimberly Mueller in her March 30 ruling granting a preliminary injunction requested by the California Chamber of Commerce.
The Chamber sued the state alleging that there is no evidence to support the claim under Prop 65 that exposure to acrylamide increases the risk of cancer in humans.
Collins
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“This is the first time the courts have forced the government of California to substantiate its own claims,” said Shawn Collins, a consumer regulatory attorney in Newport Beach who defends companies against lawsuits filed by the attorney general.
“The California Chamber of Commerce has now built up, since 1986 to the present, a substantial body of science that directly refutes what has always assumed to be factual and uncontroverted, and is now saying it's not uncontroverted.”
Prop 65 is a referendum that was passed by the people’s vote in 1986.
“Like any law, it was designed to give consumers advanced notice of chemicals contained in products that could potentially be harmful to them,” Collins told the Southern California Record. “But, as is also true, a lot of times laws that have the best of intention end up being abused by plaintiff's counsel.”
Acrylamide can be found in cosmetics, drinking water as well as in coffee, almonds, and fried or baked goods, according to media reports.
“People have always been arguing that acrylamide is naturally occurring so that when you cook any type of food or vegetable or anything, there's going to be some trace of acrylamide,” Collins said in an interview.
Alprazolam, Acetochlor, Acetamide, and Acetaldehyde are among the other chemicals included under Proposition 65, which requires cancer warning labels on products containing the chemicals.
“If there are other companies out there that have a regulatory burden or are spending a lot of money trying to comply with this law for other compounds, they are certainly going to have an incentive now to go out and find that scientific support to rebut Proposition 65,” Collins added.
Intervenor-defendant Council for Education and Research on Toxics (CERT) moved the court for an order to stay the preliminary injunction for 60 days, alleging that the injunction is unlawful.
“This application is made on the ground that Intervenor-Defendant CERT believes that the Court’s preliminary injunction enjoining CERT from filing Proposition 65 cases regarding acrylamide in food constitutes an unlawful prior restraint on CERT’s First Amendment rights,” CERT attorney Raphael Metzger stated in his April 6 application.
The California Chamber of Commerce did not immediately respond to requests for comment.