We recently became aware of a 27 May 2021 opinion from the Ninth Circuit that “stayed” the preliminary injunction barring private parties from filing new lawsuits against businesses to enforce the Proposition 65 warning requirements for cancer as applied to acrylamide in food and beverage products.1 As of 27 May 2021, a private party can again start to file or prosecute a new lawsuit to enforce California’s Proposition 65 warning requirements for cancer as applied to acrylamide in food and beverage products.2 The stay in the preliminary injunction will remain in effect during the pendency of the case at the Ninth Circuit.
For background, on 29 March 2021, the United States District Court for the Eastern District of California issued a preliminary injunction halting the filing of new lawsuits by the California Attorney General and anyone else related to the enforcement of California’s Proposition 65 against businesses that do not display Proposition 65 acrylamide warnings for food and beverage products.3 The ruling reasoned that “the safe harbor warning is controversial because it elevates one side of a legitimately unresolved scientific debate about whether eating foods and drinks containing acrylamide increases the risk of cancer.”4 Further, the court found that “the State has not shown that the safe-harbor acrylamide warning is purely factual and uncontroversial, and Proposition 65’s enforcement system can impose a heavy litigation burden on those who use alternative warnings.”5
The Council for Education and Research on Toxics (CERT) appealed the preliminary injunction to the Ninth Circuit and moved for an emergency stay pending appeal. In granting the emergency stay, the Ninth Circuit Court reasoned the motion meets the four-factor test: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”6 Notably, the court found that given the preliminary nature of the proceeding in the district court, CERT made a sufficient showing that it is likely to prevail on appeal.7 The court stayed the preliminary injunction to the extent it bars any “private enforcer,” including CERT, from “fil[ing] or prosecut[ing] a new lawsuit to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products.”8 This stay shall remain in effect during the pendency of this appeal or until further order of this court.9
Hogan Lovells will continue to closely follow the CalChamber lawsuit and other Proposition 65 developments related to food and beverages.
1 California Chamber of Commerce v. Bonta, No. 2:19-cv-02019-KJM-JDP (9th Cir. 27 May 2021).
2 Id at 3-4.
3 California Chamber of Commerce v. Xavier Becerra, No. 2:19-cv-02019-KJM-JDP, Doc. 114 (E.D.C.A. 30 Mar. 2021).
4 Id at 23.
5 Id at 25.
6 See supra note 1 at 2.
7 See id.
8 See id at 3.
9 See id at 4.