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Ninth Circuit denies California Chamber bid to dismiss appeal of Prop 65 ban on cancer warning litigation

SOUTHERN CALIFORNIA RECORD

Friday, November 22, 2024

Ninth Circuit denies California Chamber bid to dismiss appeal of Prop 65 ban on cancer warning litigation

Norristrent

Norris

A federal appeals court has denied the California Chamber of Commerce’s bid to dismiss an intervenor challenge involving Prop 65 cancer warning lawsuits that have targeted more than 200 businesses in the state. 

The Chamber had argued that the Council for Education and Research on Toxics (CERT) lacks standing to pursue an appeal of Eastern District of California Chief Judge Kimberly Mueller’s March 30 decision that placed the onus on the state of California to prove that acrylamide causes cancer before any further Prop 65 lawsuits requiring cancer warning labels may be filed.

As previously reported, 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. Prop 65 is a referendum that was passed by the people’s vote in 1986.

Although Judge Mueller denied a request to stay the enforcement of a preliminary injunction that temporarily bans Proposition 65 lawsuits requiring cancer warning labels, the Ninth Circuit Court of Appeals’ stay of Judge Mueller’s preliminary injunction remains in effect.

“That means that unfortunately, bounty hunters are still free to file new Prop 65 lawsuits over acrylamide in food,” said Trenton Norris, an attorney with Arnold & Porter who represents the California Chamber of Commerce.

Courthouse News reported that acrylamide can be found in cosmetics, drinking water as well as in coffee, almonds, and fried or baked goods.

The Ninth Circuit denied the Chamber’s motion to dismiss, but without prejudice.

“The motions' panel’s dismissal without prejudice of the Chamber’s motion to dismiss means that the merits panel is free to consider the same issue raised in the motion,” Norris told the Southern California Record. “The Chamber raised these in its answering brief as well, and they may come up at oral argument.”

The Ninth Circuit also denied intervention motions submitted by the Chemical Toxin Working Group, which is doing business as Healthy Living Foundation (HLF), and Penny Newman, who is the founder, board member emeritus, and former executive director of the Center for Community Action and Environmental Justice (CCAEJ).

“The Ninth Circuit decision said that its denial of the intervention motions does not bar HLF and Newman from seeking leave to file an amicus brief,” Norris said. “We may still see them weigh in on the appeal.”

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 next district court hearing is Aug. 27.

"The merits panel has not yet set oral argument but the earliest date will be the week of December 6," Norris added.

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