We reported about a year and a half ago on a Ninth Circuit opinion holding that the First Amendment prohibited cancer warnings required by California’s Proposition 65 because the warnings were government-compelled speech. Because there was no scientific consensus that the product at issue (glyphosate) causes cancer, the compelled warning failed intermediate scrutiny and thus violated the Constitution. You know about Prop 65. It is the voter-enacted law that requires businesses to warn Californians about significant exposures to chemicals that allegedly cause cancer or birth defects. See Cal. H&S Code § 25249.5 et seq. The result is that California is now blanketed with boilerplate warnings of chemicals “known to the state” to cause cancer that literally no one pays any attention to.
This was not the first time the Ninth Circuit ruled that the First Amendment trumps Prop 65. You might recall the court order circa 2018 requiring Starbucks and other coffee shops to warn California consumers that drinking coffee poses a risk of cancer because it contains dietary acrylamide. The problem with that warning is that it is not true. Dietary acrylamide forms naturally in many foods when prepared at high temperatures, and epidemiological studies are inconclusive on whether it is carcinogenic. One epidemiologist who reviewed the literature has concluded there are no studies showing that eating food with acrylamide increases the risk of cancer at all.
The California Chamber of Commerce thus stepped in and sued to enjoin the State from compelling businesses to disparage their own products with alarmist warnings that have no factual support. Long story short, the Chamber won, and the Ninth Circuit affirmed a preliminary injunction preventing the State from enforcing Prop 65. See our post on the opinion here.
So we have the Ninth Circuit holding that unsupported Prop 65 cancer warnings violate the First Amendment. Twice. Including in a case specifically involving dietary acrylamide. And what then did the great State of California do?
It doubled down.
Instead of turning its attention to matters that might actually harm Californians, the State promulgated a new regulation effective January 1, 2025, specifically requiring a Prop 65 cancer warning for dietary acrylamide.
And the State lost again. On remand from the Ninth Circuit, the district court has now permanently enjoined the State from enforcing its new regulation. In California Chamber of Commerce v. Bonta, No. 2:19-cv-02019, 2025 U.S. Dist. LEXIS 84289 (E.D. Cal. May 2, 2025), the district court explained that the carcinogenic risk of dietary acrylamide has been the subject of debate since its discovery in 2002. The court acknowledged animal studies showing that mice and rats develop tumors when they eat food containing acrylamide. But, “as [the] court has previously acknowledged, the implications of these animal studies and mechanistic data for assessing dietary acrylamide’s cancer risk are uncertain.” Id. at *9-*11 (emphasis in original). The FDA stated in 2024 that it is “not clear exactly what risk acrylamide poses to humans,” and as noted above, epidemiological studies have been inconclusive. Id. at *12-*14.
The district court first rejected the State’s argument that the Chamber failed to show that any of its members were compelled to provide a warning because it did not provide evidence that their food products contain acrylamide. That was beside the point. Businesses in California are under “constant, credible threat of enforcement” of Prop 65 because the statute makes it “absurdly easy” to bring a private action. A private plaintiff “need only credibly allege that a product has some of the chemical at issue, not that the amount . . . is harmful or exceeds [the designated] level.” Id. at *22-*24. The Chamber also provided evidence of hundreds of private enforcement actions alleging the presence of acrylamide, which shows how Prop 65 really works. Id at *25. The Chamber and its members definitely had standing.
On the merits, the district court ruled that the State’s new regulation was unconstitutional under Supreme Court precedent on the First Amendment—Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), and Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Under the less-stringent Zauderer test, the government can compel speech so long as it is reasonably related to a substantial governmental interest and the compelled speech is (1) purely factual, (2) noncontroversial, and (3) not unjustified or unduly burdensome. The district court found that the Prop 65 warnings were “neither uncontroversial nor purely factual as the warnings espouse a one-sided view that dietary acrylamide poses a human cancer risk despite a lack of scientific consensus on that point.” Id. at *28. The State argued that its newly formulated acrylamide warning strung together statements that were factually true. But the State was ignoring “the reality that [the warning] conveys the ‘core message’ that consumer a food containing acrylamide poses a risk of cancer.” Id. at *36-*37.
The new regulation failed under Central Hudson, too. Under Central Hudson’s intermediate scrutiny standard, the Prop 65 dietary acrylamide warning must “directly advance the governmental interest asserted and must not be more extensive than is necessary to serve that interest.” Id. at *41. California clearly has an interest in protecting the public from health hazards. “However, misleading statements about acrylamide’s carcinogenicity do not directly advance that interest.” Id. at *42. Moreover, California has other means available to inform consumers of its opinion that acrylamide in food can cause cancer without burdening the free speech of businesses, including advertising and posting information on the Internet.
The district court therefore granted the Chamber’s request for declaratory relief and a permanent injunction against enforcement of the Prop 65 acrylamide regulation. The State may or may not appeal. Or maybe a private enforcement organization (i.e., the plaintiffs’ bar) will intervene and appeal, which is what happened last time. We don’t know why the State doubled down on its unsupported and anything-but-noncontroversial acrylamide Prop 65 warning. But being the defense hacks that we are, we can’t help but see the influence of private enforcers trying to protect a profit center. Part of us would like to see another appeal, and a third opinion from the Ninth Circuit holding that the First Amendment trumps Prop 65.