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This Blog Post May Cause Cancer in California – Product Liability and Safety

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This blog post is “known to the State of California to cause cancer”. I laugh. But you probably know a lot of things California puts in this category: playground equipment, swimwear, coffee, wood furniture, umbrellas, shoes, even Disneyland.

California’s ubiquitous warning labels stem from a law known as Proposition 65. Under Proposition 65, “[n]o a person in the course of their activities must knowingly and intentionally expose any individual to a chemical known to the state to cause cancer. . . without first giving a clear and reasonable warning.”1California’s state agency responsible for enforcing Proposition 65 provides a “safe harbor” warning label for products containing chemicals that the agency (or others) consider to be carcinogenic.2 Companies that omit these labels from their products can face significant penalties, including through private enforcement.

The Ninth Circuit recently ruled that the Proposition 65 warning label violates the First Amendment as applied to acrylamide in food and beverage products.
3 Acrylamide is a chemical that can form in certain foods during high temperature cooking processes, such as frying, roasting and baking.4 California added acrylamide to its Proposition 65 list in 1990 “because studies have shown [acrylamide] produces cancer in laboratory rats and mice.”5 However, a link to cancer in humans has not been clearly demonstrated, and the trade organization challenging the warning alleged a First Amendment right not to be compelled to place false and misleading acrylamide warnings. on their food products.

There was no dispute in the Ninth Circuit litigation that Proposition 65 mandates commercial speech. Thus, the issue in the case was whether California could justify the First Amendment burden under the standard set forth by the Supreme Court in
6 As part of this test, California was obligated to show that the Proposition 65 warning for acrylamide in food and beverage products was “purely factual”, “non-controversial” and “not unwarranted or unduly burdensome”. .7

California failed to shoulder that burden on all three points. First, the Ninth Circuit found the Proposition 65 warning “controversial” because it takes sides in a “legitimacy[e]“Scientific debate on whether acrylamide in food causes cancer in humans.”8 In reviewing this debate, the Ninth Circuit placed great emphasis on the fact that “reputable scientific sources” – such as the American Cancer Society and the National Cancer Institute – had concluded that acrylamide does not do not pose a significant risk of cancer in humans, and that organizations reaching a contrary conclusion have done so only as a guideline.9

Second, the Ninth Circuit concluded that the Proposition 65 warning was not “purely factual.” Rather, the court found that the warning was affirmatively misleading because, “[s]scientific debate aside, the meaning of the word “known” in prop. 65 is not conveyed in the warning” and evidence on the record showed that most consumers did not understand from the warning that California relied on animal studies and may erroneously ‘believe’ that such products pose a cancer risk to humans “-something Californian”does not to know.”ten.

Third, the Ninth Circuit concluded that the Proposition 65 enforcement scheme “creates a heavy litigation burden for manufacturers who use alternative warnings.”11. Under Proposition 65, companies wishing to use alternatives to the California-mandated warning to explain their own view of the dangers of an acrylamide in food would lose the benefit of the “safe harbor” provision. thus exposing itself to potential liability in litigation over whether the revised disclaimer is adequate. Further, the filing before the Ninth Circuit showed that the evidence needed — “expensive testing and expensive expert testimony if the case goes to trial — was effectively out of reach for many of the companies involved.12 “Thus,” the Ninth Circuit concluded, “in context, the compelled disclosure appears unduly burdensome.”13

The Ninth Circuit’s decision is a significant victory for free speech advocates in the broader marketplace. By requiring California to meet its burden of proof, the court limited the extent to which governments and government bureaucrats can force private parties to advocate positions that are not supported by the science or which may be the subject of a legitimate scientific dispute.

The Ninth Circuit’s ruling is also an important victory in the ongoing battle against some of the particular absurdities that arise from Proposition 65. And that prospect is positive not only for free speech, but also for consumers who will be able to focus more clearly about the real dangers. if silly distractions are swept away.

Originally published in Washington Legal Foundation,
March 25, 2022


  1. Cal. Health and Safety Code § 25249.6.

  2. To see California Bureau of Environmental Health Risk Assessment, Proposition 65.

  3. To see Cal. Chamber of Com. against CERTno. 21-15745 (March 17, 2022).

  4. ID. at 8.

  5. ID.

  6. See Zauderer v. Off. of the Disciplinary Councils of the Supreme Court. from ohio471 US 626 (1985).

  7. Cal. Chamber of Com. at 16 years old.

  8. ID. at 18 years old.

  9. ID.

  10. ID. at 18-19

  11. ID. at 20 years

  12. ID. at 20-21.

  13. ID. at 20.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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