California Warning Label for Chemical Ruled Unconstitutional
California’s Proposition 65, requiring companies to warn consumers of carcinogens in their products, is unconstitutional as applied to food containing a dietary chemical often found in potato chips and french fries, a federal court ruled Friday.
Judge Daniel Calabretta of the US District Court for the Eastern District of California issued a permanent injunction preventing the state attorney general from enforcing Prop. 65’s warning requirements for the chemical acrylamide, which can form in starchy foods during high-heat cooking.
The ruling gives a full legal win to the California Chamber of Commerce, which challenged the statute on First Amendment grounds, alleging businesses are forced to convey messages that their food causes cancer despite a lack of scientific consensus.
The state’s compelled commercial speech fails to pass constitutional muster because the required warning labels are not “purely factual and uncontroversial information,” Calabretta said.
“While the science is clear that dietary acrylamide can cause cancer when administered to mice and rats in large doses, the Parties’ experts strongly disagree that the results of these animal studies can be extrapolated to humans,” the judge said.
California Chamber of Commerce CEO Jennifer Barrera celebrated the ruling in a statement. “Today’s ruling not only protects businesses from enforcement actions based on these warnings, but also upholds the principle that government-mandated disclosures must be factually accurate and not misleading,” she said.
The chemical was historically used in plastics and grouting agents, and it was added to Prop. 65 list in 1990 as a chemical “known to the State of California to cause cancer.” In 2002, researchers discovered that acrylamide can form in certain plant-based foods such as potato, grain products, and coffee that is fried, roasted or baked at high temperatures.
Prop. 65, passed by California voters in 1986, requires the governor to publish a list of chemicals known to cause cancer and businesses must have a clear and reasonable warning label on any product containing the chemicals.
The California Chamber of Commerce sued in 2019 and won a preliminary injunction prohibiting the acrylamide warning requirement based on the “unresolved scientific debate” over whether it is a carcinogen. The US Court of Appeals for the Ninth Circuit in 2022 upheld the early injunction.
At the start of the year, California issued new warning requirements, clarifying that acrylamide is “formed in some foods during cooking or processing at high temperatures” and that one of three health authorities have determined that it is a likely or probable carcinogen.
Calabretta said the modified warning labels still violate the First Amendment commercial speech test.
“While each sentence of the new warning may be factual in a strict sense of the word, under Ninth Circuit case law the Court does not take such a narrow view of the warning,” Calabretta said. “Rather, the Court looks to the meaning of the warning in context, which clearly communicates the message that dietary acrylamide poses a risk of cancer.”
Health authorities including the Food and Drug Administration, the National Cancer Institute, and the American Cancer Society “have questioned whether there is sufficient scientific proof dietary acrylamide is cancer risk to humans,” the judge said.
The Chamber of Commerce’s business members have shown that they face irreparable harm without an injunction. And misleading labels “undermines California’s interest in accurately informing its citizens of health risks at the expense of CalChamber’s First Amendment rights.”
The chamber and the California attorney general’s office didn’t immediately return requests for comment.
Hogan Lovells US LLP represents the chamber.
The case is California Chamber of Commerce v. Bonta, E.D. Cal., No. 2:19-cv-02019, 5/2/25.