Episode 39: Prop. 65 Warnings for Acrylamide in Food Not Backed by Current Scientific Data, Suit Argues

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers General counsel and Executive Vice President. Today on the podcast, we are talking to Trent Norris of the Arnold and Porter law firm. Trent is one of the foremost consumer product attorneys in the country and co leader of his firm's consumer products and retail sector. His litigation and counseling practice involved some of the most significant challenges for manufacturers and retailers of everyday products and services. Today, Trent is joining us to discuss some recent litigation involving Proposition 65 warnings for acrylamide. Trent, welcome.

Thank you, Erica.

So, Trent, tell us, what is acrylamide and why is there so much litigation around Prop 65 warnings for acrylamide?

Well, until 2002, acrylamide was an obscure industrial chemical used in a variety of applications by manufacturing facilities and water processing plants. But in 2002, it was discovered, somewhat randomly, to be present in a large amount of the food supply. And scientists have subsequently learned that it's formed in cooking many types of food, whether at home or in a restaurant or in a manufacturing facility. It's caused by a reaction that is part of the reaction that makes most of our food known as the Maillard Browning reaction. And it's present in foods such as snack foods and coffee and roasted nuts, peanut butter, french fries, baked goods, breakfast cereals. It's also found in black ripe olives, prune juice, and grilled asparagus.

So, Trent, these all seem like very healthy foods that we all consume, and in some cases, our physicians probably encourage us to consume it. Why does there need to be a Prop 65 warning?

Well, acrylamide has been known as a carcinogen for laboratory animals based on studies performed. And it was listed under Proposition 65 as one of the first chemicals that was listed based on that data. And since that time, then once it was discovered to be present in food, there's been a lot of litigation over acrylamide in food. It's resulted in warnings that are posted at coffee shops and restaurants for coffee, for french fries, and there's been litigation over most of the foods that I mentioned beforehand.

So what is the current landscape right now with acrylamide?

Well, so science has developed since that time to study whether this chemical actually causes cancer in humans. And the epidemiological data is very strong that indeed it does not cause cancer in humans, that in essence, those people who consume more acrylamide are not at greater risk of cancer than those people who consume lesser amounts of acrylamide. This has been confirmed in over A dozen studies over many, many years that look at what people actually eat as part of their diet and estimate their acrylamide intake. So it's on that basis that we see a real disconnect between Proposition 65 and its listing, which is based on animal Data, and Proposition 65 and its warning, which is directed, of course, at humans and at human food.

What is the business community doing right now to address the concern of listing acrylamide, which appears to be actually more healthful than harmful, and the Prop 65 warning requirements?

Well, we're not challenging the listing of acrylamide under Prop 65 because that's based on animal data, but what we are doing is challenging whether the state can indeed require a warning for acrylamide in human food, because the science indicates that that warning is not purely factual, and indeed, it's quite controversial. Supreme Court precedent has made clear that, of course, there are restrictions on what the government can force people to say, including businesses. And the fundamental restriction is that the information the government requires you to say must be purely factual and uncontroversial. We think that it's clear that this warning for acrylamide in food products is not purely factual, and indeed, it's just the opposite. And of course, the issue is quite controversial.

So I know that as we're talking here, we're alluding around litigation, and maybe you could talk about what the case name is and why the organization filed the lawsuit.

Yes. So In October of 2019, the Cal Chamber sued the Attorney General of California in his official capacity. So it's. The case is California Chamber of Commerce versus Becerra in the Eastern District of California, based in Sacramento. And the lawsuit seeks to enjoin the Attorney General and all those acting in concert with them, which would include the private enforcers of Prop 65 from enforcing the law with respect to acrylamide and food and the warnings that are being sought for acrylamide and food in many Prop 65 notices and lawsuits. I should say there have been over 500 such notices sent since acrylamide was discovered in food against all sorts of businesses and all different types of foods. There have been many settlements of those cases, but there are many cases that are still underway in litigation. And then even more importantly, there are many, many more businesses that have not been sued, and at least not yet. And they are having to make tough decisions about whether to put a warning on the label of their product or ask their retailers to post a warning in the store or to somehow change how the product is made to perhaps reduce the level of acrylamide in the product. But it's for the most part unavoidable that there will be some acrylamide present in the product. And so on behalf of the business community, the Chamber of Commercial has decided that this issue needs to get resolved and efficiently. And in one lawsuit, which is the Cal Chamber versus Becerra suit.

So now that the lawsuit has been filed, what's the next step? What's going to happen next?

Well, the lawsuit seeks an injunction to prevent the enforcement of the law with respect to acrylamide in food. And we'll be filing a motion for preliminary injunction in November of 2019, and that will be set for hearing sometime early next year. In the meantime, the Attorney general has indicated that his office will be moving to dismiss the complaint on grounds that there is pending litigation already in the state courts, the variety of lawsuits that I mentioned earlier. And there's been an intervention by one of those enforcers, an organization that has been suing the coffee industry for the better part of a decade now in Los Angeles in a lawsuit that's still pending. Those will be heard before the end of the year, their motions to dismiss. We think that we have the better of the argument. And this is going to be the first thing that the judge will need to decide.

So, Trent, what's the agency that implements Prop 65?

Well, it's good that you use the different verbs there, because the agency that implements Prop 65 is the Office of Environmental Health Hazard Assessment, but they're not the enforcement body. The enforcement of Prop 65 takes place by the California Attorney General, local district attorneys, and a few city attorneys. And then private enforcers who can send 60 day notices in advance of suing. They give the alleged violator, the company, a notice, and they give a notice to all of the elected officials who can sue. If none of those elected officials indeed proceed with the case, then the private enforcer gets to go forward. And over 95%, maybe 98% of the litigation under Prop 65 is undertaken by these private enforcers. They're sometimes known as bounty hunters. Some private enforcers dislike that term, some embrace the term. But the term is used because the civil penalties that are assessed for violations of Prop 65 get shared 25% to the private enforcer and 75% to the state in cases where the private enforcer has brought the case.

And so that would be why the Attorney general is listed as the defendant as opposed to the implementing agency, oeha.

Yes, that's exactly right. And the implementing agency is not the one that would be suing anybody for violations of Prop 65.

So, speaking of OEHA, wasn't there some regulations that OEHA had adopted that essentially established that no warnings were required for acrylamide? Like which was an issue in the coffee case?

That's right. So the WEHA regulation is limited specifically to chemicals that are created in brewing or roasting coffee. So it's limited to coffee. It is based on a subset of the scientific data that the Cal Chamber lawsuit is based on. In other words, there are many, many studies on coffee specifically. I think the agency cited over 1,000 of them which show that people who drink coffee, even though it contains acrylamide and some other carcinogens, are not at higher risk of cancer than people who do not drink coffee. So the agency was very clear about coffee, but they have not broadened it to include all other foods. Our lawsuit looks at the broader body of science and says that these cases about acrylamide and the requirement for warnings under Prop 65 for acrylamide in food should not be in place any longer, thanks to the way the science has turned out after greater review.

So, Trent, what does this all mean for consumers?

Well, we think consumers can consume foods that contain acrylamide with confidence. The Federal Food and Drug Administration agrees with us on that point and agrees that indeed, that people should not alter their eating patterns based on the presence of acrylamide. They've been very clear about that with respect to whole grain foods and with respect to coffee. Those two categories indeed have been shown to reduce the incidence of cancer in many circumstances. And so the fda, while it's continuing to study acrylamide, and it makes sense to do that as a responsible regulatory agency because indeed, it is a carcinogen in animals and it is present in a wide percentage of the food supply. So it deserves additional study. But our point is that what that study is indicating to date is that acrylamide in food does not create additional risk of cancer in humans. And therefore, the warnings that Prop 65 would require are false and misleading.

And when you talk about warnings, I know that through the discussions and the debate with regards to Prop 65 and the warnings that it requires, there's this overarching concern that we're over warning consumers in the general population such that it's difficult, almost impossible, to decipher a warning that truly is a warning versus a warning that doesn't have the scientific basis to support the concern that the warning might be addressing.

That's exactly right. And in fact, the state agency, the Office of Environmental Health Hazard Assessment, has been very concerned about over warning. Public health experts are very concerned that if there are too many warnings, people will ignore them all because they can't sort through them entirely. And the Food and Drug Administration is very concerned about Prop 65 warnings on food because they can have unintended consequences. People may make dietary choices that are not well informed. Where one risk is overemphasized as compared to others, that may be, in fact, greater risks. And so this is why the FDA's advice on acrylamide has been very consistent for the almost 20 years that acrylamide has been discovered in food, which is that people should continue to eat a balanced, healthy diet despite the presence of acrylamide in some foods. So over warning is something that we think is endemic under Proposition 65 to a great extent because of these litigation pressures on businesses where by putting a warning on a product, you head off the prospect of litigation and the expense of litigation. But it's not necessarily in the best interest of public health or the consumer to have so many warnings.

Thank you, Trent. This was very informative. And for those listening who are curious about Cal Chambers lawsuit can go to calchamber.com to obtain a copy of the complaint and any other information that that you may be seeking. So, Trent, thank you so much for being on our podcast today. We really appreciate it.

Thank you, Erica. I'm delighted to speak about it.

And thank you all for joining us on the workplace. Please comment, share and subscribe to Cal chambers podcast@calchamber.com.