Court Blocks Prop 65 Acrylamide Warning for Food Products
On May 2, 2025, the District Court for the Eastern District of California ruled that California’s Proposition 65 (Prop 65) warning requirement for dietary acrylamide constitutes unconstitutional compelled speech, granting a permanent injunction barring its enforcement in California Chamber of Commerce v. Bonta, No. 2:19-cv-02019.
The court acknowledged that the entirety of the warning requirement—which included a notice of possible exposure to acrylamide and a reference to findings by one of several organizations regarding its cancer risks—was literally true. However, the court held that the warning was nonetheless “misleading and controversial,” and therefore unconstitutional, because it ignored a “vigorous scientific debate” over whether acrylamide’s cancer findings in rodents can be extrapolated to humans.
“[M]isleading statements about acrylamide’s carcinogenicity do not directly advance” California’s interest in “preserving the health of its citizens,” the ruling states. “Accordingly, Prop 65’s warning requirement as to acrylamide in food fails intermediate scrutiny under the First Amendment.”
The court also rejected California’s arguments that the warning was not compelled because businesses are exempted if they can demonstrate that the chemical does not pose a significant risk at the product’s exposure levels. Because businesses relying on the exemption “run the risk of incurring substantial costs in defending against enforcement actions,” the court held that the exemption does not offer a true “reprieve from Prop 65’s warning requirement.”
The court had previously enjoined a Prop 65 warning for dietary acrylamide in 2021. The California Office of Environmental Health Hazard Assessment (OEHHA) subsequently revised the warning language and weakened it further following a 2023 Ninth Circuit decision striking down a similar Prop 65 warning for glyphosate.
That Ninth Circuit decision provided the basis for much the court’s ruling, including its position that a literally true disclosure can still be misleading in context. A blog post on that case can be found here.
