On May 2, 2025, the United States District Court for the Eastern District of California issued its decision in California Chamber of Commerce v. Rob Bonta et al., confirming that California’s Proposition 65 (“Prop 65”) warnings for food products allegedly containing dietary acrylamide is unconstitutional.  California’s Office of Environmental Health Hazard Assessment (“OEHHA”) listed acrylamide in 1990, but later research showed that trace amounts of acrylamide can form naturally in certain foods when they are exposed to heat. Since 2003, the scientific community has vigorously debated whether dietary acrylamide poses a carcinogenic risk to humans; to this day, there is no consensus on the matter. In 2019, the California Chamber of Commerce (“CalChamber”) filed suit against the State, arguing that the requirement to display Prop 65 warnings for acrylamide in food was compelled commercial speech which violated the First Amendment of the U.S. Constitution.

Prior Supreme Court cases have held that the government may compel commercial speech – i.e., force businesses to say something under penalty of law – provided the speech is reasonably related to a substantial government interest, and the compelled speech is (1) purely factual, (2) noncontroversial, and (3) is not unduly burdensome. (Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) 471 U.S. 626, 651.) CalChamber argued that the State cannot compel Prop 65 warnings for food products containing dietary acrylamide because the State does not “know” that acrylamide in food is a human carcinogen, rendering such warnings unconstitutional as they are not purely factual and are controversial due to the lack of scientific consensus. The State insisted there is no legitimate scientific debate that dietary acrylamide is a likely or probable human carcinogen, and therefore argued that the warnings do not violate the First Amendment.  Ultimately, the Court found that the scientific debate over whether dietary acrylamide posed a carcinogenic risk to humans was both legitimate and inconclusive, rendering a Prop 65 warning for dietary products unconstitutional.  The Court granted summary judgement for CalChamber and issued a permanent injunction prohibiting enforcement of the Prop 65 warning requirements as to dietary acrylamide. The state has until June 2, 2025, to appeal this decision.

If you have any questions regarding Prop 65 acrylamide warnings, please contact Ann Grottveit at agrottveit@ksclawyers.com.