On Monday, July 16, a California appeals court reversed a decision that would have required food manufacturers to label cereal products with cancer warnings, as per Proposition 65. As we have previously written on this blog, Proposition 65 is a right-to-know law that requires businesses to provide warnings when they knowingly cause exposures to chemicals that the state has listed as causing cancer or reproductive harm. However, the statute does not require cancer warnings when exposure to listed chemicals does not cause a significant cancer risk.

Plaintiff Richard Sowinski filed the suit to require Prop 65 acrylamide warnings on 59 cereals sold by three companies, Post Foods, LLC, General Mills, Inc., and Kellogg USA (the “Petitioners”). Cereal, like many roasted or fried foods, contains acrylamide. Although acrylamide was listed under Prop 65 in 1990, the actual danger of the chemical to humans is still poorly understood.

In June 2017, the trial court had denied the Petitioners motion for summary judgment.  In their appeal of that trial court decision, Petitioners argued that such warnings on cereals are preempted by federal law because “they would pose an obstacle to federal policy objectives to increase Americans’ consumption of whole grains.” In support, Petitioners cite to numerous federal statutes establishing that policy, and FDA letters to California regulators cautioning against Prop 65 warnings on cereals.  In one letter to California, FDA argued “that premature labeling of many foods with warnings about dangerous levels of acrylamide would confuse and could potentially mislead consumers, both because the labeling would be so broad as to be meaningless and because the risk of consumption of acrylamide in food is not yet clear.” In response to FDA’s letter, California’s Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible for Prop 65 labeling, agreed to postpone requiring acrylamide warnings while FDA continued to study the chemical.  The California appeals court agreed with Petitioners’ preemption claims stating that the trial court had overlooked the FDA’s concern, thereby reversing the trial court ruling in favor of Plaintiff Sowinski and granting the Petitioners motion for summary judgment.

This decision is a huge win for the cereal industry and should be closely watched to see how it will impact other Prop 65 warning for acrylamide and potentially other chemicals of concern where a Prop 65 warning could chill consumption of healthy foods.