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.

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2021 WAPA Annual Meeting

Well, we are off and running!  It looks like folks are ready for the 2021 WAPA Annual Meeting, which will be held on June 16-18th in Monterey, California.  Registrations for attendees, exhibitors and sponsors are starting to roll in for this year’s event, which is welcomed following the hiatus due to the COVID pandemic.  If you haven’t already, please be sure to visit our Annual Meeting website at www.wapa-events.com.   We have a very informative agenda with keynote speaker Dan Walters leading the way.  Stay tuned as more details on the agenda come out in the next two weeks!
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WAPA Annual Meeting Tentatively Scheduled

The Western Agricultural Processors Association (WAPA) is announcing the 2021 WAPA Annual Meeting to be held June 16th – 18th at the Monterey Marriott Hotel and Monterey Convention Center in Monterey, California. While we cannot officially say the meeting will be allowed to happen, we are moving forward as if it will. Registration packets will be going out this week and our online Annual Meeting portal will be up and operating this week. While we will be accepting registrations for attendees, exhibitors and sponsors, we will be not accepting payment at this time. We are tentatively looking at an April 15th “go/no go” date, and if we are allowed to move forward we will invoice at that time. Association staff has met with hotel and convention center staff to discuss safety protocols that will be in place should the meeting occur, such as mask requirements and social distancing. Details on those requirements will follow as we get closer. For now, keep your fingers crossed, stay safe and get vaccinated when you can!

CARB Passes Final End to Agricultural Burning in San Joaquin Valley

While the end has been preordained for some time due to the passage of SB 705 (Florez), the final death sentence was handed down by the California Air Resources Board (CARB) this past week.  The decision was in response to the proposed phase-out plan adopted by the San Joaquin Valley Air Pollution Control District last November.  CARB initially said it wasn’t enough and issued a staff report that sped up end dates for certain burning and set an absolute end date on January 1, 2025.  It should be noted that even this wasn’t enough for the environmental justice community or some of the CARB Board members, as many called for end to all agricultural burning right now.  Association Director of Technical Services Christopher McGlothlin testified on the proposal citing the need for time for newer technologies to come on line that would replace the old biomass facilities.  McGlothlin highlighted several companies and technologies that the Association has been working with over the past five years, but have not quite reached the finish line.  Association President/CEO Roger Isom also testified and argued that many of the state’s own policies have contributed to the problem with the requirement for biomass plants to burn 80% forestry waste and the waste diversion requirement for landfills that has resulted in landfills not accepting ag waste any longer.  Isom also stated we need significant funding to help growers, especially smaller ones, pay for chipping and incorporating the material back into the soil and for the new technologies to get up and running.  Thankfully, the CARB did not end burning this year, giving a slight reprieve until 2025 and some board members pledged to help get the funding necessary to solve the problem.

Be on the Lookout: New Form Required for Some NRCS Customers

If you are a producer or landowner who participates in USDA’s Natural Resources Conservation Service (NRCS) conservation programs, the Farm Service Agency (FSA) may be reaching out by mail with information about a form you’ll need to fill out.  Starting this year, all producers and landowners participating or applying to participate in certain NRCS conservation programs must complete form CCC-902, Farm Operating Plan. “In California, this new form will be needed for customers who are selected for funding in both EQIP batch periods ending March 3 and June 9,” stated Carlos Suarez, state conservationist for the USDA Natural Resources Conservation Service.  Historically, to participate in these programs, legal entities could file either the CCC-901, Member Information or the CCC-902, while individuals were not specifically required to file the CCC-902 with FSA. Now, to ensure FSA and NRCS are properly determining payment eligibility and maximum payment limitations, all customers must have a CCC-902 on file to establish eligibility.  These changes will not affect participants who already have a Form CCC-902 with a “determined” status recorded with FSA.   Customers who do not have a CCC-902 on file with FSA will be sent a letter in the mail in the coming weeks with detailed information on what is needed and how to file the form. The letter requests that the form be completed within 30 days of receipt of the letter.  For added convenience, USDA is offering options for remote or in-person submission of the CCC-902.   Fiscal year 2021 is considered a transition year to ensure all NRCS program participants can meet this updated filing requirement. Beginning in FY 2022, if form CCC-902 is not on file your payments may be impacted.

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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.).