The old saying, “when one door closes, another one opens,” felt particularly apt last week in the Prop 65 context.
First, the business community learned that the Office of Administrative Law (OAL) disapproved the Office of Environmental Health Hazard Assessment’s (OEHHA) proposed rulemaking for exposures to listed chemicals in cooked or heat processed foods. The California Chamber of Commerce along with many other business organizations had drafted comments supporting OEHHA’s decision to create an important regulatory framework that would provide meaningful guidance to food companies and potential enforcers of Prop 65 regarding acrylamide in food products. Unfortunately, OAL’s rare disapproval of the rulemaking stalls it until OEHHA addresses all of the issues raised by OAL decision. With the Governor’s Executive Order N-08-21, the agency would have 240 days from the time of the decision to complete a revised rulemaking.
Then one week later, as if by fate, the Ninth Circuit U.S. Court of Appeals ruled in favor of CalChamber by rejecting an appeal from the Council for Education and Research on Toxics (CERT) and affirming last year’s preliminary injunction barring the California Attorney General and anyone else from filing new lawsuits against businesses to enforce the Prop 65 warning requirement for the presence of acrylamide in food and beverage products. The Ninth Circuit held that given the disagreement among reputable scientific sources over whether acrylamide in food and beverages causes cancer in humans, the compulsory Prop 65 warning for acrylamide in food or beverage products was “likely misleading” and “controversial.”
A final decision in the case will have significant implications for Prop. 65 acrylamide litigation in the food and beverage space, and could open even more doors for other listed chemicals where there is significant scientific debate about their carcinogenicity or reproductive toxicity.