A federal judge has denied a request to stay the enforcement of a preliminary injunction that temporarily bans Proposition 65 lawsuits requiring cancer warning labels.
Defendant intervenor Council for Education and Research on Toxics (CERT) requested a stay on the 60-day ban last week, alleging that the injunction, requested by the California Chamber of Commerce, is unlawful.
But Chief Judge Kimberly Mueller of the Eastern District of California wrote in her April 15 rejection that CERT is not likely to succeed in its claims that a preliminary injunction is an unconstitutional prior restraint or that it is entitled to summary judgment.
“Nor has CERT shown that it will suffer irreparable harm,” Judge Mueller wrote. “It may resume private enforcement actions under Proposition 65 if a judgment is ultimately entered in its favor or if the preliminary injunction is dissolved, and it has many other avenues for alerting consumers and the public to the dangers of acrylamide.”
The California Chamber of Commerce sued the state alleging that there is no evidence to support the claim under Prop 65, a referendum passed by the people’s vote in 1986, that exposure to acrylamide increases the risk of cancer in humans.
The Chamber is a nonprofit business association with more than 13,000 individual and corporate members.
“We want to end acrylamide litigation and the shakedown of businesses based on this naturally occurring chemical in food products that we humans have been eating since fire was discovered,” said Trenton Norris, an attorney with Arnold & Porter who represents the California Chamber of Commerce.
Acrylamide can be found in cosmetics, drinking water as well as in coffee, almonds, fried or baked goods, according to media reports.
“We want the judge to rule that with respect to acrylamide, Prop 65 warnings for acrylamide violates the first amendment,” Norris told Southern California Record. “Acrylamide is just one of almost a thousand chemicals on the Prop 65 list. It's heavily litigated and, as a result, there is a lot of money that has made it into the hands of plaintiff's lawyers because of the litigation.”
Chamber data shows that more than 250 companies have been targeted with 60-day pre-litigation notices in connection with alleged exposures to acrylamide in their food products and several members of the Chamber have been sued in connection with these 60-day notices.
“The food industry has been a sitting duck for this and that's the reason for focusing on acrylamide,” Norris said. “It’s not our job to prove that acrylamide does not cause cancer in humans at dietary levels. The standard under the First Amendment only requires us to show that there's controversy about it.”
As previously reported, alprazolam, acetochlor, acetamide, glyphosate, and acetaldehyde are among the other chemicals included under Proposition 65.
Norris represents Monsanto in similar litigation concerning Prop 65 and glyphosate, which is currently on appeal with the Ninth Circuit.
Glyphosate is the active ingredient in Roundup, a well-known herbicide that has faced thousands of lawsuits.
“We achieved both a preliminary injunction and a final judgment in the case saying that warnings for glyphosate, whether it's in a food or in a bottle of Roundup, violate the First Amendment,” Norris said. “The California Attorney General has appealed and the Ninth Circuit is now being briefed.”