Defense attorneys have a new tool under their belt to fend off acrylamide litigation now that the Ninth Circuit dismissed a challenge to a preliminary injunction that bans new Proposition 65 warning requirement lawsuits.
Prop 65 is a referendum that was passed by the people’s vote in 1986.
“I'm very interested to see where this goes for sure because this completely reshapes the landscape of Prop 65 litigation in the state of California,” said Shawn Collins, a consumer regulatory attorney in Newport Beach who defends companies against acrylamide lawsuits.
The challenge alleged that U.S. District Judge Kimberly J. Mueller had abused her discretion when she ruled on March 30 that placing a Proposition 65 warning label on food and beverages containing acrylamide is controversial and not just factual, according to media reports.
“This standard that has traditionally only applied in the context of a National Labor Relations Board can now be applied outside of that and the second precedent this sets is that there is actually a standard for Prop 65 lawsuits now and if you're going to bring a Prop 65 lawsuit as a plaintiff, you better meet a higher threshold of proof,” Collins told the Southern California Record.
Underlying the federal appellate court ruling is the California Chamber of Commerce's complaint against 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.
“People are seeing that Prop 65 has been weaponized and has been utilized in a manner that it was never envisioned to be used for,” Collins said. “You have plaintiff's counsel out there that are filing lawsuits that they know have zero ability to withstand a motion to dismiss, but they're just doing it as an extortion mechanism.”
As previously reported in the Southern California Record, acrylamide can be found in cosmetics, drinking water as well as in coffee, almonds, and fried or baked goods.
“The foundation of the Court’s opinion is the fact that there is conflicting science with respect to whether acrylamide in food spikes cancer risks so the new standard moving forward is that statements made in Prop 65 labels must be “purely factual” and not controversial, as is the case with acrylamide,” Collins added.