California Chamber of Commerce Challenges the Proposition 65 Acrylamide Warning for Foods

A lawsuit filed yesterday by the California Chamber of Commerce challenges the legality of Proposition 65 warnings on foods that contain acrylamide. The Complaint, which named the Attorney General of the State of California as the Defendant and was filed in the United States District Court (Eastern District of California), is seeking declaratory relief asking the court to rule that Proposition 65 warning requirements for cancer as applied to acrylamide in food products violate the First Amendment, and injunctive relief prohibiting the Defendant and private bounty hunters from enforcing Proposition 65 warning requirement for cancer with respect to acrylamide in food products.

Acrylamide is not intentionally added to food products. Rather, the chemical is formed naturally in many types of food during cooking or processing through the Maillard reaction. According to the Complaint, common sources of acrylamide in the human diet include, among others, breakfast cereals, crackers, bread crusts, coffee, grilled or roasted asparagus, French fries, potato chips and other fried and baked snack foods, canned sweet potatoes, canned black olives, prune juice, roasted nuts, and toast. Acrylamide was listed under Proposition 65 in 1990 pursuant to the Authoritative Bodies listing mechanism, based on EPA’s determination that acrylamide was a “probable” human carcinogen and IARC’s classification of acrylamide as Group 2B (“possibly carcinogenic to humans”).

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