In a remarkable and perhaps precedent-setting decision, a California appellate court sided with cereal manufacturers in ruling last week that Proposition 65 cancer warnings for acrylamide were preempted by federal policy encouraging the consumption of more whole grains.  In overturning a lower court ruling finding no preemption, the three-judge panel of the state appeals court gave remarkable deference to Food and Drug Administration policy and guidance which, the court stated, “contained persuasive reasoning why Proposition 65 acrylamide warnings on whole grain cereals would mislead consumers and lead to health detriments.”  The appellate panel found that the lower court erred in failing to give “weight to the FDA’s analysis and concerns regarding a Proposition 65 warning and the obstacles it would pose to the fulfillment of its statutorily-driven dietary goals.”  FDA also has expressed concerns that Prop 65 warnings should be deferred given the uncertainties about the actual risks to human health from acrylamide in food.

Acrylamide — the chemical at issue in the recent Prop 65 coffee imbroglio — is not naturally present in food products but is created by the Maillard reaction, which occurs naturally between amino acids and sugars at high temperatures.  A wide variety of food products, including most prominently baked and fried starches, contain acrylamide at relatively low levels, but nevertheless in amounts that may require a Prop 65 warning.

The decision is important not only for the extent of deference afforded to federal policy in weighing the preemption analysis, but in opening up (or at least significantly widening) an avenue for further challenge to Prop 65 warnings when such statements differ from federal requirements, particularly in the case of foods and nutrition or other scenarios in which a federal agency has specifically weighed the risks and benefits of warning labels.  The decision also may affect warnings for other chemicals found in food products, most notably furfuryl alcohol, which, like acrylamide, also is produced during thermal processing and may be found in certain cereals and other whole grain products.

The plaintiff has requested reconsideration of the appeals court decision, arguing that it is contrary to the Nutrition Labeling and Education Act.

The case is Post Foods, LLC v. Superior Court of Los Angeles Cty., Cal. Ct. App., 2d Dist. (July 16, 2018).

This post was originally published on the Kelley Green Law blog.