New Prop. 65 Decision: CA Cannot Force Businesses to Put Cancer Warnings for Acrylamide on Food and Beverage Products
On March 29, 2021, the federal Circuit Court for the Eastern District delivered a significant victory to the California business community in the Proposition 65 case, California Chamber of Commerce v. Becerra. District Court Judge Kimberly Mueller ruled that the State and private litigants cannot force businesses to label food and beverage products with cancer warnings for acrylamide. Facing opposition from the Attorney General and Council for Education and Research on Toxics, the California Chamber of Commerce successfully argued that compelling businesses to label their products with a warning label would violate their First Amendment speech privileges.
The opinion found the State failed to show that the warning consists of “purely factual and uncontroversial information” and would not impose an undue burden on businesses. The assertion that food products can expose consumers to acrylamide was found to be misleading, leading to the belief that acrylamide is an additive or ingredient of a product. Judge Mueller also determined that consumers are unlikely to discern the basis for the warning, which in this case is due to the presumption of toxicologists that chemicals causing cancer in animals also cause cancer in humans without evidence to the contrary. The court observed that a warning which advises what is “known” to California assumes the reader understands the complex legal framework behind Proposition 65. Instead, consumers who read the warning will probably believe that eating the food increases their personal risk of cancer. Because the science is unsettled on this issue, the court found the warning misleads readers by inappropriately elevating one side of the scientific debate over others.
Judge Mueller granted plaintiff’s request for a preliminary injunction enjoining new lawsuits seeking to enforce the warning as applied to acrylamide in food and beverage products and found a likelihood that the Chamber would be successful on the merits of this case.
This decision relied in part on a recent Prop 65 case from the same court, National Association of Wheat Growers et al. v. Zeise et al., holding that California cannot place cancer warning on products containing glyphosate. That case is currently being briefed in the 9th Circuit Court of Appeals.
For any questions, please reach out to Ann Grottveit at This email address is being protected from spambots. You need JavaScript enabled to view it..
Kahn, Soares & Conway, LLP provides the foregoing for informational purposes only and it is not intended as legal advice. Using this information or sending electronic mail to Kahn, Soares & Conway, LLP or its attorneys does not create an attorney-client relationship. To request a PDF of this email, please contact This email address is being protected from spambots. You need JavaScript enabled to view it.
Kahn, Soares & Conway, LLP | ksclawyers.com
Welcome to WAPA
Governor Signs Ag Overtime Bill
Ignoring the pleas of real farmworkers and the agricultural industry, Governor Edmund G. Brown Jr. today
signed AB 1066, the ag overtime legislation. This means that California will have the most stringent trigger
of any state in the country for overtime for farmworkers, with 45 states having no overtime protection at
all. The Governor signed this bill, supposedly to bring “equality to all workers”, yet taxi cab drivers,
commercial fishermen, car salesmen, student nurses, computer programmers, and carnival workers all work
without any overtime provisions whatsoever. The Governor signed this ag overtime bill in the same year that
minimum wage legislation was also passed that will take California to the highest minimum wage as well as
legislation forcing California to adopt additional greenhouse gas regulations for businesses in California.
California is the only state in the country subject to such regulations. Today’s signing occurred despite
numerous requests by the agricultural industry to meet with the Governor to discuss our concerns. The
message is clear. California simply doesn’t care. These provisions will be phased in over the next few years
ending with the overtime provisions to be triggered at 8 hours per day and 40 hours per week.
In the Beginning
As folks transitioned out of cotton and into tree nuts, the industry recognized the need to have active and
effective representation at the local, state and national levels. Having enjoyed such effective
representation over the years from the California Cotton Ginners and Growers Associations, these folks
yearned for the same representation in the tree nut processing industry. Issues such as air quality, food
safety, labor, taxes, employee safety, and environmental concerns are at the forefront, and there is a
significant need for an aggressive and dynamic Association to lead the industry into the next decade and
beyond. In recognition of this, the Western Agricultural Processors Association was created in 2009.
The Western Agricultural Processors Association (WAPA) shares staff and office space with the California
Cotton Ginners and Growers Associations taking advantage of a unique and opportunistic situation. WAPA is a
voluntary dues organization with four shared staff and one dedicated staff person. Regulatory, legislative
and legal issues fall under the purview of this new organization for the tree nut processing industry, which
includes almonds, pecans, pistachios and walnuts. From air quality permits to conditional use permits, from
regulatory hearings on greenhouse gases to federal legislation on food safety, and from OSHA violations to
assisting members on hazardous materials business plans, no issue is too small or too large for WAPA. WAPA
has assembled one of the best and most capable staffs in the industry, and the results are already starting
to show
Membership
The Western Agricultural Processors Association represents facilities involved in the processing of almonds,
pecans, pistachios and walnuts.Membership in the Association is classified as Regular memberships are
limited to almond hullers or processors, pecan and pistachio processors, and walnut dehydrators and
processors.
Associate memberships are limited to any individual or business entity which is not engaged in agricultural
processing, but which provides products or services directly related to the agricultural processing
industry. WAPA Associate members include, but are not limited to, commodity brokers, accounting firms, and
insurance brokers.
Organization
The Western Agricultural Processors Association is governed by a Board of Directors, elected by its
membership.The Board consists of up to 15 members from throughout the state, and throughout the industry.The
Board meets on a quarterly basis and conducts an Annual Meeting in the spring of each year.WAPA, in
conjunction with the California Cotton Ginners and Growers Associations, conducts a special training school
for its members focused on safety.In combination with the school, the Association holds a Labor Management
Seminar for all of the managers.
Consulting Services
In researching and considering the concept of forming a new organization, the Boards of Directors for the
California Cotton Ginners and Growers Associations instructed staff to perform some of the work on a
consulting basis first. The point was to determine the workload from consulting and to determine if there
was sufficient interest. In November of 2007, the Association began conducting services under consulting
contracts for such services as air quality permits and safety plans.The effort has been so successful that
demand has progressed outside the tree nut industry into other agricultural processing facilities, including
vegetable dehydration facilities, tomato processing facilities, and wheat mills, as well as cotton gins in
Arizona.It was determined by the new Board of Directors of WAPA, that WAPA would maintain the consulting
services to provide offsetting income to help with the expenses of getting the new organization up and
running.Today, WAPA provides for a long list of satisfied clients in the agricultural processing industry,
by providing critical services such as air quality, safety, food safety, and environmental issues (Hazardous
Materials Business Plan, Spill Prevention Control and Countermeasure Plans, etc.).